AdRizer Master Services Agreement

 

This Master Services Agreement (including any exhibit and/or schedule attached hereto and any Order Forms (as defined below), this “Agreement” or “MSA”), dated as of the Order Form Effective Date pursuant to the Order Form attached hereto (the “Effective Date”), is made between AdRizer LLC. (“AdRizer”) and the company named at the top of the Order Form attached hereto (“Company”).  Each of AdRizer and Company may be referred to herein individually as a “Party” or collectively as the “Parties”.  IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

 

Services

 

1.1    Services.  AdRizer will make available certain services (each, a “Service” and collectively, the “Services”) to Company according to any service order that references this Master Services Agreement (including any exhibit and/or schedule attached thereto, “Order Forms”), each of which are deemed incorporated herein by reference; provided that an Order Form will not be deemed entered into until signed by an authorized representative of each Party.  The Services will be subject to the terms and conditions of this Agreement.

1.2    AdRizer Software.  As part of the Services, AdRizer will make available to Company the AdRizer Software (as defined below) subject to and in accordance with the terms and conditions set forth in any Order Form.  Subject to the terms and conditions of this Agreement, AdRizer hereby grants to Company, during the Term (as defined below), a non-exclusive, non-transferable right to access and use the AdRizer Software solely for internal business purposes. As used herein, the “AdRizer Software” means AdRizer’s proprietary Software and associated technology, in object code format only, which is made available by AdRizer to Company and, when technically feasible and when implemented by Company and AdRizer pursuant to an Order Form, is intended to be utilized on the Company Properties in order to enable AdRizer to track and provide information on Company’s digital advertising and traffic on the Company Properties. AdRizer will provide Company with updates, modifications, fixes, and enhancements (“Update(s)”) to the AdRizer Software as necessary in AdRizer’s sole discretion, and Company will incorporate the AdRizer Software, and any Updates, within five (5) business days after receipt. Company will use the AdRizer Software solely in accordance with this Agreement.

1.3             Restrictions. Except as expressly permitted hereunder, Company shall not and shall not permit or authorize any third party to: (a) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the AdRizer Software; (b) bypass or breach any security device or protection used for or contained in the AdRizer Software, (c) translate or create derivative works based on any of the AdRizer Software; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the AdRizer Software available to any third party; or (d) access or use the AdRizer Software (or any part thereof) to build a competitive product or service.  AdRizer reserves any and all right, title and interest in and to the AdRizer Software other than the limited rights expressly granted to Company in this Agreement.

1.4             Prohibited Behavior. Except as set forth below, no versions of any Company Property or any application included within or used with the AdRizer Software (as applicable) may (a) engage in activity that knowingly violates any applicable law or regulation, intellectual property right of a third party, or terms of service; (b) directly generate queries, or generate clicks or other paid content through any automated or fraudulent means (including, but not limited to, robots, macro programs and Internet agents); (c) knowingly encourage or require end users or any other persons, with or without their knowledge, to click on paid content, or to enter queries, by offering incentives or any other means that are manipulative, deceptive, malicious or fraudulent; (d) knowingly use software for any type of click fraud; (e) include content that is illegal or pornographic, obscene, adult, mature, hate-related or violent content or be downloadable from any domain containing such content; or (f) engage in any other activity that is similar in nature to the activities listed in this Section 1.4.

1.5    Advertising Networks.  Company understands and agrees that AdRizer utilizes third party advertising networks to place advertisements on the Company Properties, and therefore AdRizer has no control over or responsibility for the specific advertisements that may be placed on the Company Properties, including, but not limited to, which advertisers will be placed on the Company Properties or what the content of such advertisements will be.  Should Company have concerns with any particular advertisement placed on a Company Property and provides AdRizer notice in writing, AdRizer agrees to attempt to request that the applicable third party advertising network take down the advertisement from the Approved Website; however, AdRizer cannot control or in any way be responsible for whether such third party advertising network complies with any request.

1.6    Feedback.  Company may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to AdRizer with respect to the AdRizer Software.  AdRizer shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Company hereby grants AdRizer a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

 

FEES & Payment

 

2.1    General.  Each Party will pay to the other Party the amounts due to such Party in accordance with the applicable Order Form(s) and as provided herein.

2.2    Net of Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated, that may be applicable to such amounts payable, (collectively, but excluding any taxes based solely on the income of either party “Taxes”).  Company shall be solely responsible for payment of any Taxes.

2.3    Reporting.  All reported numbers for purposes of billing, payments, the determination of Gross Revenue, fees and general delivery reporting are based on counts within the AdRizer Software.

2.4    Disputed Amounts and Fraud.  Notwithstanding the foregoing, AdRizer shall not be obligated to remit payment for (and shall be entitled to a refund with respect to) any amounts which result from any revenues fraudulently generated by any person, robot, automated program or similar device, including, without limitation, through any incentivized clicks (collectively referred to in this Section as “Fraud”).  AdRizer contracts with third party companies in an effort to prevent and detect Fraud, but Company agrees and understands that AdRizer is not responsible for Fraud caused by third parties and may not be able to detect, prevent or stop Fraud.  If AdRizer believes that Fraud is, has been, or may be taking place in conjunction with the Company Properties and/or any advertisements placed on them, AdRizer may, in its sole discretion, refrain from further advertising placement.  In the event of any dispute over the calculation of Gross Revenue, the parties shall resolve such dispute in good faith and remit the undisputed portions of any such Gross Revenue.

2.5    Suspension.  AdRizer reserves the right to suspend Company’s access to the AdRizer Software with notice in the event of Company non-payment of outstanding invoices.

2.6    Audit.  Company shall have the right, at Company’s expense, to have an independent auditor conduct an inspection and audit of the relevant books and records of AdRizer for the sole purpose of determining whether AdRizer has accurately invoiced and/or paid Company pursuant to this Agreement. Under no circumstances shall Company have the right to examine records pertaining to AdRizer’s business generally or relating to other agreements for purposes of comparison or otherwise. Any such audit shall be conducted during AdRizer’s regular business hours at AdRizer’s offices and in such a manner as not to interfere unreasonably with AdRizer’s normal business activities.  In no event shall such audits be conducted hereunder more frequently than every twelve (12) months.  Prior to commencing any such audit, the auditor shall have entered into an agreement with Company which prohibits the disclosure of any information relating to AdRizer to any party, including Company, except that such auditor may issue a report to Company, the sole purpose of which shall be to report to Company whether AdRizer has accurately invoiced and/or paid Company pursuant to this Agreement, including a summary of and sufficient detail regarding the accuracy or lack thereof. The audit right shall extend to the end of the full calendar year immediately following the end of any calendar year in which service occurred hereunder (each such year, a “Service Year”) at which point (i) the audit right with respect to the Service Year shall terminate and (ii) all amounts invoiced and/or paid hereunder with respect to such Service Year shall be final. In the event that any such inspection or audit reveals an error the correction of which would result in at least $2,500.00 in favor of Company with respect to any Service Year or portion thereof, then in addition to paying Company such amount due, AdRizer shall reimburse Company for the independent auditor fees actually incurred in conducting such inspection or audit.

 

Company data

 

3.1    Reporting.  Company understands and acknowledges that the data provided to Company by AdRizer consists in large part of information and data taken from third party sources (“Third Party Data”).  Company agrees that AdRizer is not in any way responsible for, and is unable to verify the accuracy of, any such Third Party Data.  Company agrees and understands that, while some of the Tracking Information may be provided by AdRizer in real-time, the timing on providing all Tracking Information is not under AdRizer’s control since it is provided by and collected from third party sources.

3.2    Company Data.  Company retains all right, title and interest in and to the Company Data, other than the limited rights expressly granted in this Section 3.  For purposes of this Agreement, “Company Data” means any and all information collected and/or stored by or on behalf of AdRizer in connection with Company’s use of the AdRizer Software, excluding data and information relating to the operation and/or performance of the AdRizer Software.

3.3    Rights to Company Data.  Nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Company Data, or any of Company’s rights or interests therein.  Company hereby grants AdRizer the non-exclusive right and license to (a) copy, use, modify, distribute, display and disclose Company Data solely to the extent necessary to provide the Services to Company pursuant to the terms and conditions of this Agreement, (b) copy, modify and use Company Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (c) copy, use, modify, distribute, display and disclose Company Data on an aggregate and anonymized basis for marketing purposes, solely to the extent that: (i) the aggregate data does not include information that identifies or would reasonably be expected to identify Company or any of Company properties, brands or end users as the source of such data; and (ii) the data set into which the Company Data is bundled includes similar data from AdRizer’s other clients of the Services.

 

TERM; TERMINATION

 

4.1    Term of Agreement.   This Agreement will be effective from the Effective Date and continue until all Order Forms have expired or terminated (the “Term”).

4.2    Term of Order Forms.  Unless earlier terminated in accordance with this Agreement, the initial term of each Order Form commences on the Order Form Effective Date (as defined in such Order Form) and continues for the initial term expressly specified therein. Except as otherwise specified in each applicable Order Form, each Order Form shall automatically renew for additional periods of twelve (12) months unless either Party gives the other notice of non-renewal at least five (5) days before the end of the then-current term.

4.3    Termination for Breach.  Either Party may terminate this Agreement, including the Order Forms, immediately on written notice to the other Party that it is in material breach of this Agreement; provided however that if the breach is capable of cure, the breaching Party will have ten (10) days from the notice date to cure the breach to the non-breaching Party’s reasonable satisfaction.

4.4    Termination for Convenience.   Either Party may terminate this Agreement or any individual Order Form at any time, for any reason or no reason, upon five (5) days’ prior written notice to the other Party.

4.5    Effects of Termination.  Upon termination or expiration of this Agreement: (i) Company will within five (5) days cease any and all utilization of the AdRizer Software, ensure that it is removed from the Approved Websites, provide AdRizer with written notice when the AdRizer Software is removed from the Company Properties, and delete and destroy any and all AdRizer Software in its possession; and (ii) except in the event that termination is due to Company’s uncured breach, AdRizer shall promptly pay Company all undisputed amounts owed under this Agreement through the date of termination.

 

CONFIDENTIAL INFORMATION

 

As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be reasonably understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure.  Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.  Each Receiving Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information.  Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to: (A) such employees and agents of the Receiving Party as may have a need to know such information in the course of their duties; and (B) legal or financial advisors or potential acquirers or financing sources of the Receiving Party on a need to know basis, provided, that, in each case, such recipients are bound by professional ethical duties or confidentiality obligations at least as restrictive as those set forth herein. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and use commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order).  Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party.

 

Representations and Warranties; Exclusions; INDEMNIFICATION

 

6.1    Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required operational power, right and authority to enter into this Agreement and perform its obligations hereunder, (b) such Party shall comply with all applicable laws and regulations with respect to its activities under this Agreement, including, without limitation, Applicable Privacy and Data Security Laws, (c) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (d) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

6.2    AdRizer Warranties.  AdRizer further represents and warrants to Company that: (a) AdRizer will use industry standard measures to prevent the AdRizer Software from containing any “virus”,“Trojan Horse”, “worm”, or any other malicious code, which could impair Company’s, its affiliates’ use of or access to the same; and (b) AdRizer will use commercially reasonable efforts to ensure the security of Company Data (subject to the license rights set forth in Section 3).

6.3    Company Warranties.  Company further represents and warrants to AdRizer that it shall: (a) use reasonable efforts to prevent unauthorized access to, or use of, the Services and in the event of any such unauthorized access or use, promptly notify AdRizer; (b) obtain and maintain all necessary licenses, consents and permissions necessary for AdRizer (including its agents) to perform its obligations under this Agreement, including, without limitation, the Services; (c) provide end user license agreements (each, a “EULA”) or terms of service (“TOS”) on all Company Properties that provide clear and prominent notice of AdRizer’s software data collection practices through use of the AdRizer Software and (d) use commercially reasonable efforts to ensure that its network and systems comply with any relevant specifications provided by AdRizer to Company in writing from time to time.

6.4    Security; Personally Identifiable Information.  AdRizer will implement and maintain reasonable security procedures and practices with respect to the Company Data in accordance with the terms of this Agreement and any Applicable Privacy and Data Security Laws. AdRizer will notify Company promptly if AdRizer becomes aware (a) of a Security Event or (b) that any person who has had access to Company Data has violated Section 3.3 or 6.4 of this Agreement applicable to Company Data. AdRizer shall not collect any Personally Identifiable Information (as defined below) of Company Users of any of the Company Properties, including without limitation through the AdRizer Software, without the prior written consent of Company; provided that Company hereby consents to the collection of usage statistics associated with any Company User’s access of the Company Properties solely in connection with AdRizer performing its obligations under this Agreement.

6.5    Exclusions.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADRIZER PROVIDES THE ADRIZER SOFTWARE ON AN “AS-IS” BASIS AND DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  COMPANY ACKNOWLEDGES THAT ADRIZER DOES NOT WARRANT THAT THE ADRIZER SOFTWARE WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES.  COMPANY ACKNOWLEDGES THAT ADRIZER IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES RELATED TO OR ARISING FROM COMPANY’S USE OF THE ADRIZER SOFTWARE.

6.6    Indemnification by AdRizer.  AdRizer shall defend Company and its officers, directors, employees, and agents (each, a “Company Indemnified Party”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Company’s authorized use of the AdRizer Software infringes any intellectual property right of a third party (the “IP Infringement Obligation”) or any breach by AdRizer of Sections 6.1(b) or 6.2(b). Further, AdRizer shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses.  AdRizer’s obligations described in this Section shall be excused to the extent that the Company Indemnified Party does not: (a) promptly notify AdRizer of such Claim; (b) tender to AdRizer the sole and exclusive authority to defend and/or settle any such Claim; and (c) reasonably cooperate with AdRizer in connection with such Claim.  This Section states AdRizer’s entire obligation and Company’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

6.7    IP Infringement Exceptions.  AdRizer’s IP Infringement Obligation will not apply to claims to the extent arising from (a) Company’s use of the AdRizer Software in violation of this Agreement, (b) modification of the AdRizer Software by any party other than AdRizer without AdRizer’s express consent, or (c) the combination, operation, or use of the AdRizer Software with other applications, portions of applications, product(s), data or services where the AdRizer Software would not by itself be infringing (collectively, the events described in Sections 6.7(a), (b) and (c), “Indemnity Exceptions”).  If the AdRizer Software becomes, or in AdRizer’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then AdRizer will promptly notify Company and, at AdRizer’s sole option and expense, may either: (i) procure the right to continue providing the AdRizer Software as contemplated by this Agreement; (ii) modify the AdRizer Software to render it non‑infringing (provided that such modification does not adversely affect use of the AdRizer Software); or (iii) replace the AdRizer Software with a functionally equivalent, non‑infringing service.  If none of the foregoing options is commercially practicable, then each Party will have the right to terminate this Agreement.

6.8    Indemnification by Company.  Company shall defend AdRizer and its officers, directors, employees, and agents (each, a “AdRizer Indemnified Party”) against any Claim arising from: (a) any of the Indemnity Exceptions; (b) the content of any advertisement displayed on Company Properties; (c) any claims by Company Users arising from or related to the AdRizer Software or provision of the Services (other than claims covered by AdRizer’s indemnification obligations under Section 6.6); or (d) any breach by Company of Sections 6.1(b) or 6.3(a). Further, Company shall indemnify the AdRizer Indemnified Party against any damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses.  Company’s obligations described in this Section shall be excused to the extent that the AdRizer Indemnified Party does not: (a) promptly notify Company of such Claim; (b) tender to Company the sole and exclusive authority to defend and/or settle any such Claim; and (c) reasonably cooperate with Company in connection with such Claim.

 

Limitation of Liability

 

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE AND EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 5 ABOVE OR A BREACH BY COMPANY OF SECTION 1.2 OR 1.3, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE AND EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 5 ABOVE OR A BREACH BY COMPANY OF SECTION 1.2 OR 1.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN EXCESS OF THE AMOUNTS PAID OR PROPERLY PAYABLE BY COMPANY TO ADRIZER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND REGARDLESS OF THE FORM OF ACTION.

NONCOMPETE

 

The Parties agree that the AdRizer Software and AdRizer’s related digital marketing tracking services are special and unique and that, pursuant to the license granted to Company under Section 1 of this agreement, Company will have access to Confidential Information of AdRizer, including, but not limited to, trade secrets in relation to the AdRizer Software.  Company agrees that during the Term of this Agreement, and for a period of five (5) years after its termination, Company will not create or develop, or have any third party create or develop, a product and/or platform that competes with the AdRizer Software and AdRizer’s digital marketing tracking services, whether for internal use or third party use.

GENERAL

 

This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party.  No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver.  Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship.  Except as provided herein, neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws.  Each of the Parties hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York for any litigation among the Parties hereto arising out of or relating to the Agreement.  All notices under or related to this Agreement will be in writing and will reference the Agreement.  Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.  All communications will be sent to the addresses set forth in the Order Form or such other addresses designated pursuant to this Section.  Neither Party may assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party.  Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business to which this Agreement relates of the assigning Party by merger or purchase.  Any attempt by either Party to assign or transfer any of the rights, duties or obligations of the Agreement in violation of the foregoing shall be void.  This Agreement, together with all Order Forms, constitutes the entire agreement between the Parties concerning the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. No term of any Order Form will be deemed to amend the terms of this Agreement unless an Order Form references a specific provision in this Agreement. Any Order Form amending a term of this Agreement shall amend such term only with respect to the Services performed pursuant to such Order Form. Neither Party is liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or unanticipated degradation, failure of third party networks or communications infrastructure, or other similar events beyond the reasonable control of a Party.  Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, AdRizer does not guarantee the AdRizer Software will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance.  Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of each Party shall immediately terminate.  Each Party will not be liable to the other Party nor (as between the Parties) to any third party for termination of this Agreement. Notwithstanding the foregoing, Sections 1.3, 1.4, 1.5, 2, 3.1, 3.3(b), 3.3(c), 5, 6.1, 6.4, 6.5, 6.6, 6.7, 6.8, 7, 8 and 9 shall survive the expiration or termination of this Agreement.

 

DEFINITIONS

 

AdRizer Fees” shall mean the fees charged to Company by AdRizer for AdRizer Services pursuant to any Order Form(s).

Affiliate” means any company or other business entity controlled by, controlling or under the common control of that party.  For the purposes of the definition of “Affiliate,” “control” will mean the direct or indirect power to direct, or cause the direction of, the management and policies of a company or other business entity, whether through ownership of fifty percent (50%) or more of the voting interest, by contract, or otherwise (and “controlling” and “controlled” will be construed accordingly).

Applicable Privacy and Data Security Laws” means the following: (a) all privacy, security, and data protection laws, rules, and regulations of any applicable jurisdiction (including, without limitation, the U.S. and Canada), and all then-current industry standards, guidelines, and practices with respect to privacy, security, and data protection including the collection, processing, storage, protection, and disclosure of personal information; and (b) the applicable privacy policies of either party as well as Company’s policies and guidelines applicable to any of the foregoing provided to AdRizer in written form from time to time and/or posted on any Company Properties.

Company Properties” means the websites, apps, and other digital media properties owned and operated or controlled by Company or its Affiliates that have been approved by AdRizer in writing and listed on Exhibit A on the Master Service Agreement hereto.

Company Users” means the end users of and visitors to Company Properties.

Gross Revenue” means the amount actually collected by AdRizer that is generated by end users viewing and/or clicking on advertisements displayed on the Company Properties by AdRizer pursuant to the terms of this Agreement. Gross Revenue does not include any amounts earned but not collected (e.g. outstanding balances, etc.). Gross Revenue will be calculated and payment will be made to Company net of any taxes AdRizer is required to collect, withhold or pay with respect to such earned amount and net of credit card processing fees, bad debt and charge backs, commissions, or discounts allowed or paid to advertisers or advertising agencies and refunds to advertisers.

Personally Identifiable Information” shall mean all information, data and records of, applicable to and/or relating to Company Users, including, names, email addresses, telephone numbers, IP addresses, usage statistics, and registration data associated with such Company User’s access of the Company Properties.

Security Event” means an event where Company Data or Confidential Information stored by AdRizer is accessed or received by an individual or entity not authorized to access or receive such data or information. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date by executing the Order Form attached hereto.

Software License Agreement - AdRizer