DIGITRUST ID SERVICES AGREEMENT

Size: px

Start display at page:

Download "DIGITRUST ID SERVICES AGREEMENT"

Gilbert Booker
5 years ago
Views:

1 DIGITRUST ID SERVICES AGREEMENT This DIGITRUST ID SERVICES AGREEMENT, dated as of, 2018 (the Effective Date ), is by and between IAB Technology Laboratory, Inc. ( Tech Lab ) and ( Subscriber ), individually a Party and together, the Parties. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber and Tech Lab hereby agree as follows: 1. DEFINITIONS API Service means any application programming interface supplied by Tech Lab Applicable Law means any treaty, directive, international agreement, law, statute, regulation, order, code, rule, or ordinance issued, adopted, or otherwise put into effect by or under the authority of any governmental authority and applicable to a party or its assets, properties, or businesses DigiTrust Identifier means a digital identifier randomly generated by a JavaScript provided by Tech Lab to Subscriber for use on digital Media including, without limitation, the DigiTrust ID, which may be accessed by DigiTrust Subscribers through an API call utilizing the API Service DigiTrust Subscriber means any entity that enters into an agreement with Tech Lab for the Services which is substantially similar to this Agreement End User means an individual who accesses Media JavaScript means an open-source JavaScript file provided by Tech Lab to Subscribers. The script: (1) generates the DigiTrust Identifier and stores it as a conventional cookie (along with a timestamp for when End User notice/consent was achieved, where necessary), and (2) allows the encrypted DigiTrust Identifier to be read and used by DigiTrust Subscribers (with the decryption key), but only if the consumer has not opted out Media means media (in any form) on which Subscriber has the right to exploit or enable others to exploit (whether by ownership, contract, or otherwise) Intellectual Property Rights means all patents, copyrights, moral rights, trade secrets, trademarks, service marks, know-how, mask works, and all other intellectual and industrial property rights, whether or not registered or perfected, anywhere in the world, and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues for any of the foregoing Services means Tech Lab s proprietary cloud service that offers: (i) the DigiTrust Identifier, as well as associated features that may be added from time to time; (ii) the API Service; (iii) decryption keys; and (iv) documentation intended to assist with enabling, generating, and distributing the JavaScript and the DigiTrust Identifiers and related features Term has the meaning set forth in Section

2 2. SUBSCRIPTION; OBLIGATIONS; RESTRICTIONS ON USE; OWNERSHIP Subscription. Subject to the terms and conditions of this Agreement, Tech Lab hereby grants to Subscriber a limited, non-exclusive, non-transferable, revocable right to access and use the Services during the Term in connection with services Subscriber provides to its clients and customers with respect to the Media. Subscriber is responsible for any software, hardware, or other technology required to implement the Services in connection with the Media and complying with any corresponding terms and conditions set forth in this Agreement Subscriber Obligations. In connection with its use of the Service, Subscriber shall establish, implement, and maintain commercially reasonable physical, electronic, and procedural safeguards required to comply with the Applicable Laws Restrictions. Subscriber shall not: (i) use the Services in violation of any Applicable Laws; (ii) transmit any unencrypted DigiTrust Identifier to advertisers or other entities interested in, or otherwise involved in, the purchase or sale of advertising inventory on the Media, except to DigiTrust Subscribers; (iii) modify, translate, enhance, or create derivative works of the Services or reverse assemble or disassemble, reverse engineer, decompile, or otherwise attempt to derive source code of the Services; (iv) rent, lease, lend, sell, sublicense, assign, transfer, or otherwise make the Services commercially available to any other person; (v) remove any copyright or other proprietary notices on or in the Services; or (vi) violate or circumvent any technological restrictions within the Services or as otherwise specified in this Agreement. The foregoing restrictions shall not apply to the transmission by Subscriber of the encrypted DigiTrust Identifier to advertisers or other entities interested in, or otherwise involved in, the real-time purchase or sale of advertising inventory on the Media. Under no circumstances shall Subscriber provide the decryption key to any DigiTrust Identifier to any person or entity who is not a DigiTrust Subscriber Data Policy. Tech Lab agrees to post its data policy (the Data Policy ) on its website and agrees that all Services will be provided in accordance with the Data Policy Privacy Policy. Subscriber agrees to post on its website a privacy policy that complies with all Applicable Laws and agrees to comply with the terms of each such policy Opt-Outs. Subscriber agrees that: (i) its privacy policy will provide End Users with a conspicuous link to a functional opt-out page that enables such End Users to opt out of behavioral or interest-based advertising; and (ii) Subscriber shall honor any such opt-out requests Ownership. As between the Parties, Tech Lab owns and shall own all rights, title, and interest in and to the Services and all underlying Intellectual Property Rights therein. Subscriber has no rights with respect to the Services or the underlying Intellectual Property Rights other than those expressly granted hereunder. Subscriber acknowledges that DIGITRUST is a registered trademark of Tech Lab (the Trademark ) and that Subscriber may not use the Trademark in promoting its products and services except in accordance with Tech Lab s guidelines available at or with the express, prior, written permission of Tech Lab. 3. TERM AND TERMINATION. 2

3 3.1. Initial Term and Renewal Terms.The initial term of this Agreement begins on the Effective Date and shall continue for a period ending one (1) year from the end of the month in which the Effective Date occurred (the Initial Term ). Upon expiration of the Initial Term or any Renewal Term, this Agreement shall automatically renew for successive one (1) year periods (each, a Renewal Term and collectively with the Initial Term, the Term ), unless either party provides written notice to the other party of non-renewal at least thirty (30) days prior to the expiration of the then-current Term Termination For Breach; Suspension of the Services. In the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving seven (7) days prior, written notice to the breaching Party; provided, however, that this Agreement shall not terminate if the breaching Party has cured the breach before the expiration of such seven (7) day period. In addition, in the event Subscriber fails to pay any Fee (as defined below) in full when due, Tech Lab may, following five (5) days prior written notice to Subscriber of the outstanding Fee and Subscriber s failure to render payment thereof, suspend Subscriber s access to the Services. Tech Lab may terminate this agreement, at its sole discretion, upon thirty (30) days prior written notice Effect of Expiration or Termination. Upon expiration or termination of this Agreement: (i) Subscriber shall pay Tech Lab for all amounts payable hereunder as of the effective date of termination if Tech Lab is the party terminating the Agreement pursuant to Section 3.2; (ii) Tech Lab shall refund Subscriber a pro-rata portion of any pre-paid Fee if Subscriber is the party terminating this Agreement pursuant to Section 3.2, Section 6.2 or Section 8.1; and (iii) all rights granted hereunder to Subscriber shall immediately cease, and Subscriber shall immediately cease all access to, and usage of, the Services Survival. The following provisions shall survive any expiration or termination of this Agreement: Section 1 (Definitions), Section 2.7 (Ownership), Section 3.3 (Effect of Expiration or Termination), Section 4 (Financial Terms) until all Fees and taxes payable hereunder are paid, Section 5.2 (Disclaimer of Warranties), Section 6 (Indemnification), Section 7 (Limitation of Liability) and Section 9 (Miscellaneous Provisions). 4. FINANCIAL TERMS Fee. As consideration for the rights granted hereunder, Subscriber shall pay Tech Lab the monthly fee set forth at as of the Effective Date and, thereafter, for each Renewal Term, the monthly fee then set forth on the Tech Lab portal (the Fee ). The Fee shall be payable for any month in which Subscriber uses the Services, whether such usage was for the entire month or a portion of the month. Subject to Section 3.3(ii), Section 6.2, and Section 8.1, all Fees are non-refundable. Tech Lab reserves the right to change the Fee for any Renewal Term on at least sixty (60) days notice prior to the commencement of such Renewal Term Payment Terms. For the Initial Term and any Renewal Terms, Tech Lab shall issue Subscriber an invoice, which Subscriber may pay by check or online with a credit card if such option is available. All payments are made in advance. Subscriber shall pay all invoices in full within thirty (30) days of receipt. Access to the Services during the Initial Term is 3

4 usually initiated within seventy-two (72) hours of the Effective Date. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments shall be made in U.S. dollars Taxes. The Fee does not include applicable transaction taxes. If Tech Lab is required by law to pay any national, state, county, local, or value added tax, sales or use tax, goods and services tax, or similar applicable taxes based on this Agreement, Tech Lab shall ensure that such taxes are invoiced to Subscriber in accordance with applicable rules so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Subscriber shall pay any invoiced taxes in accordance with Section 4.2. Nothing in this Agreement, however, shall require Subscriber to pay any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits, or income tax of Tech Lab. 5. REPRESENTATIONS AND WARRANTIES Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms Tech Lab Warranties. Tech Lab further represents and warrants that to the knowledge of Tech Lab, the Services: (a) do not and will not contain any software disabling devices, material security flaws or harmful components; (b) will not violate any right of privacy or publicity Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 5.2, ALL SERVICES ARE PROVIDED AS IS AND AS AVAILABLE, AND TECH LAB MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, TECH LAB MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET SUBSCRIBER S OR ANY OTHER PERSON S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 4

5 6. INDEMNIFICATION Tech Lab Indemnity. Tech Lab shall indemnify, defend, and hold harmless Subscriber from and against any damages, losses, liabilities, costs, and expenses, including reasonable attorneys fees ( Losses ), incurred by Subscriber in connection with any third-party claim, action, or proceeding (each, a Claim ) to the extent based on or arising from any assertion that the Services infringe, violate, or misappropriate the Intellectual Property Rights of any third party. The foregoing obligations do not apply to any Losses or Claims to the extent arising out of or relating to any: modification of the Services other than by Tech Lab or with Tech Lab s prior written approval in accordance with Tech Lab s written specifications; use of the Services in violation of this Agreement or Applicable Laws; use of the Services in combination with modules, apparatus, hardware, software, or services not supplied or specified in writing by Tech Lab; or failure to timely implement any modifications, upgrades, replacements or enhancements made available to Subscriber Intellectual Property Claims. In the event that Tech Lab reasonably determines that the Services are likely to be the subject of a Claim, Tech Lab will have the right (but not the obligation), at its own expense and option, to: (i) procure for Subscriber the right to continue to use the Services as provided herein; (ii) replace the infringing components of the Services with other components with the equivalent functionality; or (iii) suitably modify the Services so that they are non-infringing and functionally equivalent. If none of the foregoing options are available to Tech Lab on commercially reasonable terms, Tech Lab may terminate this Agreement without further liability to Subscriber, in which case Subscriber will cease all use of the Services. This Section 6.2, together with the indemnity provided under Section 6.1, states Subscriber s sole and exclusive remedy, and Tech Lab s sole and exclusive liability, regarding any Claim for intellectual property infringement, violation or misappropriation Subscriber Indemnification. Subscriber shall indemnify, defend, and hold harmless Tech Lab, Tech Lab s affiliates and each of their respective officers, directors, members, employees, and agents from and against any and all Losses incurred by Tech Lab in connection with any third-party Claim to the extent based on or arising from Subscriber s breach of this Agreement Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to Section 5.1 or Section6.3, as the case may be. The Party seeking indemnification (the Indemnitee ) shall reasonably cooperate with the other Party (the Indemnitor ) at the Indemnitor s sole cost and expense. The Indemnitor shall promptly take control of the defense, investigation and settlement of such Claim and shall employ counsel to handle and defend the same, at the Indemnitor s sole cost and expense. The Indemnitee s failure to provide prompt notice of a Claim will not relieve the Indemnitor of its obligations under this Section 6 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. Subject to the Indemnitor s right to control the defense, investigation and settlement of a Claim, the Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. 5

6 7. LIMITATIONS OF LIABILITY EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF SERVICES, USE, BUSINESS, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE; OR (ii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID TO TECH LAB IN THE PRECEDING TWELVE (12) MONTHS UNLESS THE CLAIM IS A CLAIM PURSUANT TO SECTION 6 OF THIS AGREEMENT, IN WHICH CASE LIABILITY SHALL NOT EXCEED THREE (3) TIMES THE AMOUNT OF FEES PAID TO TECH LAB IN THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE TIME TO BRING CLAIM. ANY CLAIM UNDER THIS AGREEMENT SHALL BE BROUGHT NO LATER THAN ONE YEAR FROM THE DATE OF THE EVENTS GIVING RISE TO THE CLAIM. ANY CLAIM NOT BROUGHT WITHIN SUCH ONE YEAR PERIOD SHALL BE BARRED. 8. FORCE MAJEURE No Breach or Default. In no event will Tech Lab be liable or responsible to Subscriber, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Tech Lab s reasonable control (a Force Majeure Event ), including acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of any law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Notwithstanding the foregoing, a Force Majeure Event shall not include economic hardship, 6

7 changes in market conditions, insufficiency of funds, or unavailability of equipment or supplies. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of sixty (60) consecutive days or more. If Subscriber is the Party exercising this right, it shall be entitled to a pro-rata refund of any prepaid amounts Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Tech Lab shall give prompt notice to Subscriber, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. 9. DIGITRUST SUBSCRIBERS. Tech Lab shall enter into agreements with all DigiTrust Subscribers who are members of Tech Lab on substantially similar terms, including price (as provided by Tech Lab at as those in the same subscriber category. 10. MISCELLANEOUS PROVISIONS. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by either Party, except with the other Party s prior written consent; provided, however, that either Party may assign this Agreement to an affiliate or in connection with a transaction in which all or substantially all of the assets of the assigning Party are assigned to a third party. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Borough of Manhattan, New York City, New York. The Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other party in any respect whatsoever. This Agreement may be executed in counterparts (which may be exchanged by facsimile or PDF), each of which shall be deemed an original, but which together shall constitute one and the same instrument. Accounts Payable Address for Invoicing: [Signature Page to Follow] 7

8 IAB Technology Laboratory, Inc. By: Print Name: Dennis Buchheim Title: General Manager Subscriber By: Print Name: Title: 8

AccessHosting.com TERMS OF SERVICE

AccessHosting.com TERMS OF SERVICE 1. Legally binding agreement. By ordering and/or using any service offered or provided by Access Hosting LLC, dba AccessHosting.com ( AccessHosting.com), the individual