These Terms (including any exhibit, addendum, and/or schedule attached hereto and any Service Orders (as defined below), this “Agreement”), as they appear dated as of the Service Order Effective Date pursuant to a Service Order (the “Effective Date”), are entered into between ViralGains, Inc, incorporated and registered in Delaware whose registered office is at 75 State Street Suite 100, Boston, MA 02109 (“ViralGains”) and the corporation listed on the Service Order (“Company”). Each of ViralGains 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:
1. SERVICES
1.1 Services. ViralGains will make available certain services (each, a “Service” and collectively, the “Services”) to Company according to any service order that references this Agreement (including any exhibit and/or schedule attached thereto, “Service Orders”), each of which are deemed incorporated herein by reference; provided that a Service Order 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 ViralGains Odyssey Platform. As part of the Services, ViralGains may make available to Company ViralGains Odyssey (as defined below) subject to and in accordance with the terms and conditions set forth in any Service Order. Subject to the terms and conditions of this Agreement, ViralGains hereby grants to Company, during the Term (as defined below), a non-exclusive, non-transferable right to access and use ViralGains Odyssey solely for internal business purposes. As used herein, “ViralGains Odyssey” means ViralGains’s proprietary platform and associated technology, in object code format only, which is made available by ViralGains to Company and, when technically feasible and when implemented by Company and ViralGains pursuant to a Service Order, enables Company to orchestrate Advertisement journeys and conduct, optimize, and track their Advertising Transactions. Company will use ViralGains Odyssey 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 ViralGains Odyssey; (b) translate or create derivative works based on any of ViralGains Odyssey; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make ViralGains Odyssey available to any third party; or (d) access or use ViralGains Odyssey (or any part thereof) to build a competitive product or service. ViralGains reserves any and all right, title and interest in and to ViralGains Odyssey other than the limited rights expressly granted to Company in this Agreement. For the avoidance of doubt, ViralGains may modify and alter ViralGains Odyssey, and methodologies used to build, traffic, and report on Advertisements at any time and at their sole discretion as part of their ongoing development program.
1.4 Creative Services. As part of the Services, ViralGains may provide Company with creative design and development work, including project management, quality control and final quality assurance (“Creative Services”) in accordance with the applicable Service Order. Company understands that ViralGains’ performance is dependent in part on Company’s actions. Accordingly, Company will use commercially reasonable efforts to provide ViralGains with the necessary items and assistance specified in the relevant SOW in a timely manner. Any dates or time periods relevant to performance by ViralGains hereunder shall be appropriately and equitably extended to account for any delays due to Company.
1.5 Ad Serving; Additional Terms. As part of the Services, ViralGains may enable Company to engage in Advertising Transactions though certain DSP(s) connected to ViralGains Odyssey. Such Advertising Transactions may either be made (a) using Company’s account with the applicable DSP, via an application programming interface linked between such DSP and ViralGains Odyssey (“API”), or (b) using ViralGains’ account with the applicable DSP through an API. To the extent Company engages in any Advertising Transaction using Company’s account with the applicable DSP, Company’s service agreement between Company and such DSP will govern such Advertising Transaction. To the extent Company engages in any Advertising Transaction with an applicable DSP using ViralGains’ account with such DSP, the Additional Terms set forth on Addendum A applicable to such DSP shall apply with respect to such Advertising Transaction.
1.6 Feedback. Company may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to ViralGains with respect to ViralGains Odyssey. ViralGains 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 ViralGains a royalty-free, fully paid up, worldwide, transferable, sublicensable, 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.
2. FEES & PAYMENT
2.1 General. Company will pay to ViralGains the amounts due to ViralGains in accordance with the applicable Service Order(s) and as provided herein. Unless otherwise set forth in the applicable Service Order, all payments shall be due within 30 days of the date of the applicable invoice. Late payments will bear interest at the rate of 2.0% per month, or, if lower, the maximum rate allowed by law in the jurisdiction.
2.2 Net of Taxes. All amounts payable hereunder are exclusive of any sales, use, withholding 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 sales, use, withholding, duty or value-added Tax due in relation to any of Company’s transactions with ViralGains and ViralGains may add the amount of such Tax to any invoice to Company or, if applicable, withhold such Tax from any payment to Company.
2.3 Payment Terms. Unless otherwise set forth in the applicable Service Order, ViralGains shall invoice Company approximately monthly for any applicable fees in accordance with the applicable Service Order(s) and Company will pay to ViralGains the amounts due to ViralGains in accordance with the applicable Service Order(s) and as provided herein. Company’s use of the Services may be subject to credit limits, as determined by ViralGains in its sole discretion from time to time. Company will promptly provide ViralGains with information reasonably required to complete ViralGains’ payment review process. Company is responsible for providing complete and accurate billing and contact information to ViralGains, and notifying ViralGains promptly of any changes to such information.
2.4 Taxes. Except and solely to the extent as otherwise may be indicated by ViralGains, charges for Services do not include any taxes or government charges levied by or due to any duly authorized taxing authority and Company will, without offset against or deduction from amounts otherwise owed by Company hereunder, pay any such taxes and government charges derived from or imposed on transactions through the Services, including sales, value-added, goods and services, use, transfer, gross income based withholding, privilege, excise and other taxes and duties.
2.5 Reporting. All reported numbers for purposes of billing, payments, the determination of fees and general delivery reporting are based on measurements within ViralGains Odyssey.
2.6 Suspension. ViralGains reserves the right to suspend Company’s access to ViralGains Odyssey with notice in the event of Company non-payment of past due invoices.
3. COMPANY IP; COMPANY DATA
3.1 Company IP. Company shall retain ownership of all right, title and interest in and to any of its Content (as defined below) trademarks, software, information and other intellectual property (“Company IP”) provided by it to ViralGains in connection with the Services. Company hereby grants ViralGains a worldwide, non-exclusive, sublicensable, transferable, perpetual, irrevocable, fully paid-up, royalty free license to use and exercise all Company IP in connection with ViralGains’s performance of the Services. Notwithstanding the foregoing, ViralGains shall retain ownership of all right, title and interest in and to its preexisting software, technology and other intellectual property, including all deliverables (except as otherwise specified in a Service Order) and any other content, technology or intellectual property developed or provided by or on behalf of ViralGains in connection with the Services.
3.2 Content. Company accepts responsibility for all material, text, graphics, recommendations or other writings that are part of the content provided by Company to ViralGains in connection with the Services, including the content of the Advertisements (collectively, “Content”) and warrants and undertakes to ViralGains that the Content: (a) conform to all applicable laws, regulations and codes of practice; (b) do not contain any defamation or obscenity or, without factual substantiation, comparative advertising; (c) do not infringe any copyright, trademark, patent or intellectual property right belonging to a third party and, if appropriate, that all licenses and consents required from any third party have been obtained; (d) do not violate or infringe in any way the rights of third parties including, without limitation, contractual, employment, trade secrets, proprietary information and non-disclosure rights and any intellectual property rights.
3.3 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 ViralGains in connection with Company’s use of ViralGains Odyssey, excluding data and information relating to the operation and/or performance of ViralGains Odyssey, which for the avoidance of doubt, is and shall be owned by ViralGains.
3.4 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 ViralGains 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.
4. TERM; TERMINATION
4.1 Term of Agreement. This Agreement will be effective from the Effective Date and continue until all Service Orders have expired or terminated (the “Term”).
4.2 Term of Service Orders. Unless earlier terminated in accordance with this Agreement, except as otherwise specified in each applicable Service Order, the initial term of each Service Order commences on the Service Order Effective Date (as defined in such Service Order) and continues for one year. Except as otherwise specified in each applicable Service Order, each Service Order shall automatically renew for additional periods of one (1) year unless either Party gives the other notice of non-renewal at least sixty (60) days before the end of the then-current term.
4.3 Termination for Breach. Either Party may terminate this Agreement, including the Service Orders, 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 thirty (30) days from the notice date to cure the breach to the non-breaching Party’s reasonable satisfaction.
5. CONFIDENTIAL INFORMATION
5.1 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.
6. 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 ViralGains Warranties. ViralGains further represents and warrants to Company that: (a) ViralGains will use industry standard measures to prevent ViralGains Odyssey from containing any “virus”, “trap door”, “Trojan Horse”, “worm”, “self-destruction”, “disabling”, “metering” device or any other malicious code, which could impair Company’s, or its Affiliates’, use of or access to the same; and (b) ViralGains 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 ViralGains 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 ViralGains; (b) obtain and maintain all necessary licenses, consents and permissions necessary for ViralGains (including its agents) to perform its obligations under this Agreement, including, without limitation, the Services; and (c) use commercially reasonable efforts to ensure that its network and systems comply with any relevant specifications provided by ViralGains to Company in writing from time to time.
6.4 Data Security. ViralGains 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. ViralGains will notify Company promptly if ViralGains 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.
6.5 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, VIRALGAINS PROVIDES VIRALGAINS ODYSSEY 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 VIRALGAINS DOES NOT WARRANT THAT VIRALGAINS ODYSSEY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. COMPANY ACKNOWLEDGES THAT VIRALGAINS IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES RELATED TO OR ARISING FROM COMPANY’S USE OF VIRALGAINS ODYSSEY.
6.6 Indemnification by ViralGains. ViralGains 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 ViralGains Odyssey infringes any intellectual property right of a third party (the “IP Infringement Obligation”). Further, ViralGains shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses. ViralGains’s obligations described in this Section shall be excused to the extent that the Company Indemnified Party does not: (a) promptly notify ViralGains of such Claim; (b) tender to ViralGains the sole and exclusive authority to defend and/or settle any such Claim; and (c) reasonably cooperate with ViralGains in connection with such Claim. This Section states ViralGains’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. ViralGains’s IP Infringement Obligation will not apply to claims to the extent arising from (a) Company’s use of ViralGains Odyssey in violation of this Agreement, (b) modification of ViralGains Odyssey by any party other than ViralGains without ViralGains’s express consent, or (c) the combination, operation, or use of ViralGains Odyssey with other applications, portions of applications, product(s), data or services where ViralGains Odyssey would not by itself be infringing (collectively, the events described in Sections 6.7(a), (b) and (c), “Indemnity Exceptions”). If ViralGains Odyssey becomes, or in ViralGains’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then ViralGains will promptly notify Company and, at ViralGains’s sole option and expense, may either: (i) procure the right to continue providing ViralGains Odyssey as contemplated by this Agreement; (ii) modify ViralGains Odyssey to render it non‑infringing (provided that such modification does not adversely affect use of ViralGains Odyssey); or (iii) replace ViralGains Odyssey 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 ViralGains and its officers, directors, employees, and agents (each, a “ViralGains Indemnified Party”) against any Claim arising from: (a) any of the Indemnity Exceptions; or (b) any breach by Company of Section 3.2. Further, Company shall indemnify the ViralGains 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 ViralGains 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.
7. 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 SECTIONS 1.4 OR 1.5, 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 SECTIONS 1.4 OR 1.5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN EXCESS OF THE AMOUNTS PAID OR PROPERLY PAYABLE BY COMPANY TO VIRALGAINS 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.
8. 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 Commonwealth of Massachusetts and of the United States of America located in Suffolk County, Massachusetts 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 Service Order or such other addresses designated pursuant to this Section. Company may not assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of ViralGains, which consent will not be unreasonably withheld by the ViralGains. 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 Service Orders, 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 Service Order will be deemed to amend the terms of this Agreement unless a Service Order references a specific provision in this Agreement. Any Service Order amending a term of this Agreement shall amend such term only with respect to the Services performed pursuant to such Service Order. 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, ViralGains does not guarantee ViralGains Odyssey 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, 1.5, 1.6, 2, 3.4(b), 3.4(c), 5, 6.5, 6.6, 6.7, 6.8, 7, 8 and 9 shall survive the expiration or termination of this Agreement.
9. DEFINITIONS
“Ad Inventory” means digital advertising inventory, including web, application-based, and video inventory on display and mobile.
“Advertisement” means the advertising content, provided to ViralGains through the Creative Builder or directly by Company or another third party and the content of which are hosted on ViralGains’s CDN.
“Advertising Transaction” means, the actual or attempted purchase or sale of Ad Inventory, the serving of Advertisements to Ad Inventory, or the processing of data related to Ad Inventory or Advertisements for analysis, using the Services.
“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 ViralGains in written form from time to time and/or posted on any Company Properties.
“DSP” (or “Demand Side Platform”) means the demand side platform that Company chooses to use to serve Advertisements or Company Content for any given campaign, whether used via ViralGains’ account with such DSP or used directly by the Company via an API. By way of example, DSPs include but are not limited to MediaMath and Xandr.
“Security Event” means an event where Company Data or Confidential Information stored by ViralGains is accessed or received by an individual or entity not authorized to access or receive such data or information.
Addendum A – Annex 1
DSP Access Terms applicable to ViralGains’ Account with Xandr
1. Company Obligations and Service Rules.
1.1 Prohibited Acts. Company will not, will not attempt to, and will not assist or knowingly permit any third party to:
(a) General. (i) copy, reproduce, modify, disassemble, decompile, reverse engineer, or create derivative works of any Service (or portion thereof); (ii) breach, disable, interfere with, or develop or use any workaround for, or otherwise misuse or damage, any Service or any activity on a ViralGains server; (iii) set, read, write, modify, or delete any cookie on a ViralGains-owned, operated, or controlled domain or use ViralGains’ Services to modify cookies on any domain Company does not own, operate, or control, or otherwise have appropriate authorization to modify; (iv) pass to ViralGains, or otherwise associate a ViralGains-provided identifier with, or use in association with the Services to target advertising, any information that (A) by itself directly identifies an individual, such as a person’s name, address, phone number, email address, or government identifier, or (B) is deemed sensitive by any Applicable Privacy and Data Security Law (including, as applicable and without limitation, health information and information about children or an end user’s visit to a child-directed Site), or (C) in a manner inconsistent with the Service Policies (including pertaining to children and sensitive information); (v) pass incomplete or incorrect Bidding/Targeting Terms; or (vi) when using any Service, collect or use data provided by, from, or related to a third-party buyer or seller of Advertising Inventory, advertiser, publisher or Site (each, a “Third-Party User”), for purposes of segmenting, re-targeting, creating, supplementing or amending user or inventory profiles, or amending interest categories, or syndication or other distribution to third parties, unless, (A) such data collection and usage are authorized by or on behalf of the applicable Third-Party User, or (B) the data is independently derived by Company from a user’s “click” or other interaction with an Advertisement and not related to the underlying publisher.
(b) Buyer-Specific. when using a Service as a Buyer: (i) provide an Advertisement to ViralGains or configure the Advertisement to link to digital properties (e.g., websites and applications) that (A) will, when viewed or clicked, cause the download or delivery of any software or executable code (without effective user consent), virus, or malicious or social engineering (phishing) code or features, or (B) is obscene, deceptive, or violates or infringes upon the rights of any third party; or (ii) disclose Ad Inventory availability, volume, or pricing data obtained through the Service without authorization from the seller of such Ad Inventory, except to provide reporting to Company’s applicable client(s) about their Advertising Transactions.
1.2 Audit. ViralGains reserves the right to audit Company’s use of the Services and related activities to ensure Company’s compliance with the terms of this Agreement, and Company will reasonably cooperate with any such audit. Any audit will occur upon reasonable advance written notice to Company, and will be conducted during normal business hours, in a manner designed to not unreasonably interfere with Company’s ordinary business operations, and no more than once in every twelve (12) month period unless ViralGains finds material noncompliance as a result of the prior audit. Any confidential information belonging to Company that is accessed or disclosed during the audit will remain Company’s Confidential Information (excluding ViralGains’ Confidential Information). Any audit will be at ViralGains’ expense, unless a material non-compliance is discovered, in which case Company will reimburse ViralGains for such audit expenses.
1.3 Additional Service Rules.
(a) All Advertising Transactions deemed by ViralGains to be executed pursuant to the Services are final and binding, and Company will be ultimately responsible for any and all payment obligations for your Advertising Transactions. Company will have no recourse against ViralGains for (i) any Advertising Transaction that does or does not occur based on erroneous Bidding/Targeting Terms entered by Company or any other party to your Advertising Transactions, and (ii) any discrepancy between ViralGains’ billing measurements (including impression and click count) and any alternative measurements produced by Company or a third party; provided that, to the extent there is a material discrepancy of ten percent (10%) or greater between ViralGains’ billing measurements (including media spend, impression and click count), which shall control, and any alternative measurements produced by Company or a third party on Company’s behalf, ViralGains will use commercially reasonable efforts to investigate and reconcile such discrepancy. ViralGains’ billing measurements will be the sole basis for determining the amounts owed between the parties pursuant to Company’s use of the Services.
(b) ViralGains and each of our customers (including Company) may reject, remove, block, or deactivate Advertisements, ad tags, Ad Inventory, or Sites for any reason, including non-compliance with ViralGains’ Service Policies or their respective policies, or applicable law.
1.4 Third Party Beneficiaries. ViralGains is neither the buyer nor the seller in Advertising Transactions, and therefore does not assume, and expressly disclaim, all liability arising from Company’s use of the Services except as expressly set forth herein, including but not limited to, liability arising from Advertisements, Ad Inventory, and Sites.
1.5 Purchasing from Third-Party Platforms. Company authorizes ViralGains and grants ViralGains all rights necessary to: (a) use Company’s accounts on any DSPs that Company elects to use through the Services and that require Company to have its own account with such exchange in order to purchase their Ad Inventory (an “Authorized DSP”); and (b) transmit Bidding/Targeting Terms to any such Authorized DSP. Company will pay, and be solely liable for, Ad Inventory that is purchased from any Authorized DSP through Company’s account. Company will pay ViralGains separately for any applicable fees in accordance with Section 2 of this Agreement.
2. Privacy. In consideration of the Services provided and used hereunder, Company will ensure that its Bidding/Targeting Terms are acquired in accordance with Applicable Privacy and Data Security Laws. Company will have and ensure that each of its owned, operated or controlled Sites contains, and will require of each of your Clients that each of their Sites contains an easily accessible and discoverable privacy policy that (i) complies with all applicable laws governing notice to end users, (ii) discloses usage of third-party technology to collect and use data in connection with the Services; and (iii) as applicable for your business, and consistent with industry standards, provides end users access to a user choice mechanism such as, for example, the opt out page(s) of the Network Advertising Initiative, the Digital Advertising Alliance, or the European Digital Advertising Alliance. If, apart from your use of the Services, you associate data derived from your use of the Services with information that directly identifies an individual, you will do so only in accordance with all Privacy Laws.
3. Additional Indemnification. In addition to the Indemnification obligations set forth in Section 6 of this Agreement, Company agrees to defend, indemnify, and hold harmless ViralGains and its licensors, officers, directors, employees, and agents (each, an “Indemnified Party”) from all third-party claims and liabilities (including reasonable outside attorneys’ fees) arising out of or related to Company’s (a) breach or alleged breach of this Agreement; or (b) any actions or omissions in connection with Company’s use of the DSP using ViralGains’s account.
4. Additional Definitions.
4.1 “Bidding/Targeting Terms” means any information and/or data provided to the Services by or on behalf of Company or Company’s clients to conduct Advertising Transactions.
4.2 “Service Policies” means the written policies for use of the Services set forth on the ViralGains website, the ViralGains user interface, wiki, and/or other external resource (located here), including any inventory-specific or other terms that are incorporated by reference or link, and in each case as may be modified by ViralGains from time to time; provided that, ViralGains will provide notice by email to Company of material changes to the Service Policies other than changes to third party policies incorporated by reference therein.
4.3 “Sites” means the digital properties (e.g., websites or applications) on which a Service is utilized.
Addendum A – Annex 2
DSP Access Terms applicable to ViralGains’ Account with MediaMath
1. Client Obligations. Company agrees that its use of the Services, including any Company Data provided to ViralGains or collected, compiled, processed or transferred using the Services (including any such data that is uploaded into the ViralGains Platform), and the display of Advertisements, shall at all times be in compliance with all applicable laws and MediaMath’s policies for use of the Services found at www.mediamath.com/legal/terms/policies (“MediaMath User Policy”); provided that if Company is not a member of the NAI, Company’s obligations under the NAI Code shall be limited to the rules governing transparency and notice, user control, use limitation, data quality, data retention and security. ViralGains will provide Company with notice of any material changes to the User Policy and Company may immediately terminate this Agreement if it determines in its reasonable discretion that through commercially reasonable efforts it is unable to comply with such material change. Additionally, with respect to digital media inventory provided by Facebook, the purchase and use of such inventory is additionally subject to (and Company shall at all times comply with) the terms and conditions found at https://www.facebook.com/legal/terms and, to the extent such terms conflict with this Agreement or the MediaMath User Policy with respect to such digital media inventory, Facebook’s terms shall control solely with respect to the conflict. Notwithstanding the foregoing or anything to the contrary herein (but subject always to the obligations set forth in this Section 1 and Section 2 below), neither party shall be liable to the other to the extent that any breach of applicable law by it is caused directly by an act or omission of the other party. Company is solely responsible for: (i) distribution of its Advertisements and implementation of ad tags or similar software code or web beacon, (ii) obtaining the required consents and authorizations from third parties in order to rightfully distribute and display the Advertisements through the Services, and (iii) the placement of ad tags and similar code and web beacons and data collections on various Sites. Company shall be prohibited from (a) attempting to gain unauthorized access to the Services or any related systems or networks, (b) directly or indirectly modifying, reverse engineering, reverse compiling or disassembling, or causing or permitting any other party to modify, reverse engineer, reverse compile or disassemble, any Services, (c) reselling or making available to third parties any part or derivative of the Services, (d) except as otherwise agreed by the parties in writing, creating derivative products based upon the Services or using data owned by ViralGains or contractors of ViralGains, (e) except as otherwise agreed by the parties in writing, using the Services, any data owned by ViralGains or contractors of ViralGains, or any part thereof, to build or augment user profiles, or to create or enhance any database, service or other offering for resale to a third party, (f) including in Company Data any personal data or other data relating to individuals or households which have opted out of targeted advertising or which is otherwise inaccurate, (g) providing or permitting any third party to provide to ViralGains any personally identifiable information, except as permitted by the MediaMath User Policy, or (h) merging any data owned by ViralGains or contractors of ViralGains with any personally identifiable information or otherwise re-identifying, or attempting to re-identify, an individual for targeted advertising without obtaining specific opt-in consent
2. Privacy. At all times, in accordance with applicable laws, Company shall (i) post a conspicuous privacy policy on the website(s) owned and operated by it which provides information to users, including without limitation a description of the types of personal data that are collected, an explanation of how and for which purpose(s) personal data will be used or transferred to third parties (including for the Processing Activities and Controller Purposes), any disclosures of personal data that have been made, and (ii) where required by applicable law, secure specific consent to the use of cookies and other tracking or similar technologies that store or access information stored on user devices (and provide users with a means to opt-out from advertising cookies and such tracking technologies). In the event that Company intends to provide Company Data to ViralGains that constitutes personally identifiable information, Company is responsible for encrypting such data in a manner which prevents it from being disassembled or reverse engineered in order to identify the individual to which it pertains prior to providing it to ViralGains, and such encrypted data shall then no longer be personally identifiable information.
3. Additional Indemnification. In addition to the Indemnification obligations set forth in Section 6 of this Agreement, Company shall defend any ViralGains Indemnified Party against any Claim arising out of or relating to ViralGains’ authorized use of Company Data or Company’s use of the Services in violation of the MediaMath User Policy, and shall indemnify ViralGains for any damages, compensation claims under European Law, regulatory fines, attorney fees and costs incurred by ViralGains in connection therewith. The right to control the defense and settlement of a Claim shall not apply to any claim made by a regulatory authority of a data subject.
Addendum B
Additional Terms & Conditions
Access to the Data Marketplace. ViralGains Odyssey allows access to a Data Marketplace where you may pay to use behavioral, contextual and/or other data (the “DM Data”) made available by third party data providers (each a “Provider”) solely to analyze, target, and report on the purchase and/or sale of Ad Inventory (the “Data Marketplace”). Each Provider or we may restrict or deny your access to any DM Data for any reason.
i. Representations and Warranties. You represent and warrant that you and your Subcontractors and Clients (a) will at all times (i) comply with all applicable self-regulatory policies and guidelines applicable to the use of the DM Data; and (ii) protect the DM Data from misappropriation, and (b) will not, will not attempt to, and will not assist or knowingly permit any third party to, unless expressly agreed to in writing by the applicable Provider, (i) use any DM Data in any sharing arrangement, or resell, rent, lease or sublicense the DM Data to any third party; (ii) disclose any of the DM Data (whether aggregated or otherwise) to any third party or use any of the DM Data for purposes of creating user or inventory profiles, segments or interest categories; (iii) misappropriate, reverse engineer, decompile, disassemble, reproduce, steal, modify, damage, translate, enhance or create derivative works of any DM Data; (iv) make any representations, warranties or guarantees concerning the DM Data; (v) provide reports to any third parties on a paid or unpaid basis about the DM Data (including the volume and prices of data) for any other purposes other than (x) generating advertiser demand for the DM Data or (y) providing reporting of your DM Data usage on behalf of a Client to such Client; and (vi) unless otherwise agreed upon by the Parties, directly utilize any Provider’s DM Data through the Services other than through the Data Marketplace and for the Provider Rates. For clarity, certain Providers’ DM Data is subject to additional terms and conditions as specifically set forth in the Service Policies and use of such Providers’ DM Data constitutes acceptance of the relevant additional terms and conditions.
ii. Third Party Beneficiary. We do not assume, and expressly disclaim, all liability arising from your access or use of the DM Data.
iii. Proprietary Rights. You agree that each Provider (or its licensors, as applicable) owns and retains all right, title and interest in and to all of its intellectual property, including, without limitation, to its DM Data, and no rights are granted to you with respect to our or any Provider’s intellectual property except as expressly set forth in this Agreement.