The “Services” are described in each IO signed by both Company and tvScientific, including any campaign management services, pixels, user interface, and other functionality provided by tvScientific as part of the Services from time to time. In the event of a conflict between these Demand Terms and the IO, the IO will prevail.
In order to provide campaign analytics, tvScientific may append a pixel to Company’s ad to enable the campaign analytics. Company may not edit or delete any pixel without tvScientific’s prior written consent and must promptly remove all pixels upon termination of this Agreement. Company will provide the relevant ad serving tags or the appropriate file to tvScientific. Each ad tag may relate to one advertiser only (but can be related to multiple ads/creative for that advertiser). Company is solely responsible for the proper functioning of ad tags.
tvScientific may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the Services or by a separate agreement between the parties.
Company is responsible for all activity under its account, including maintaining the confidentiality of its account logins and passwords and ensuring that all reporting and data usage complies with this Agreement. To the extent that tvScientific assists Company with using the Services, Company consents to the actions that tvScientific performs on its behalf. Company retains sole responsibility for such assisted use of the Services.
Unless expressly approved by tvScientific in writing, Company all payments for media and related fees will occur through tvScientific (e.g., Company may not pay a supply partner/publisher outside the Services).
Company will pay tvScientific the amounts described in each IO and any applicable Taxes (defined below).
Company may be subject to a credit check prior to first using the Services and from time to time during the Term. tvScientific reserves the right to determine the amount of credit that it extends to Company at any time.
Unless otherwise set forth in the applicable IO, all tvScientific invoices will be issued monthly in arrears and Company will pay each invoice within 20 days of the invoice date. Unless the parties agree otherwise in writing, tvScientific will invoice and Company will pay in US dollars. The metrics reported by tvScientific and its Providers shall be decisive, including for purposes of calculating amounts owed.
For any invoice that is not paid in full within 45 days of the invoice date, tvScientific reserves the right to (a) charge interest of 2% per month (or the maximum allowed by law, whichever is lower), and (b) if Company does not pay an overdue invoice in full within 5 days of receiving a notice of nonpayment, suspend Services or terminate this Agreement. All payments due under this Agreement shall be made without setoff or deduction.
tvScientific invoices shall be deemed undisputed unless Company notifies tvScientific otherwise within 30 days of receipt of each invoice for media spend and within 10 days for all other fees. tvScientific may require prepayment of expected amounts due under this Agreement, which will be credited against the corresponding invoice(s).
All fees and other amounts due under this Agreement do not include any present or future local, state, federal or foreign taxes, levies, fees, or duties of any nature (“Taxes”). tvScientific may charge applicable Taxes in addition to the fees due under this Agreement. Except for any Tax that tvScientific has charged to Company (and that Company has actually paid to tvScientific), Company is responsible for remitting to the appropriate authority all Taxes based on or arising from this Agreement other than Taxes based on tvScientific’s net income. All payments due under this Agreement shall be made without setoff or deduction, including on account of any Taxes, unless Company is required by law to withhold Taxes from any payment to tvScientific. In such case, Company will pay to tvScientific such additional amounts as are necessary so that each net payment to tvScientific (i.e., after Tax withholding) is no less than the amount that would otherwise have been payable under this Agreement. If tvScientific is held responsible for any Taxes arising from the Agreement (aside from Taxes based on tvScientific’s net income), Company will reimburse tvScientific for such payments.
These Demand Terms incorporate by reference all applicable technical specifications, policies and Service-specific terms provided by tvScientific in writing or shown at https://www.tvscientific.com/terms-and-conditions/.
Company will follow any other technical specifications that tvScientific provides to Company. tvScientific’s third party service providers (“Providers”) may require different or additional terms for specific Services. tvScientific will provide any such terms to Company directly or by posting to https://www.tvscientific.com/terms-and-conditions/.
Company will use the Services only for its own use or for clients that have authorized to do so. Company will not attempt to circumvent security measures, share its Services login credentials with any third party, reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any tvScientific-provided pixel, tag or the Services, distribute viruses or malware or use the Services to gather competitive intelligence.
Each party will comply with all applicable laws, rules, regulations and government guidance (tvScientific in its provision of the Services in the form provided, and Company as to the ads it provides and its use of the Services), which shall include, for purposes of clarification and not of limitation, Federal Trade Commission guidance on sponsorships and native advertising and, if applicable, Federal Communication Commission rules, regulations and guidelines. Company will comply with any ad guidelines provided by tvScientific in writing, tvScientific’s security requirements and any applicable Provider ad standards and technical requirements (all of the foregoing, “Ad Standards”). To the extent Ad Standards conflict with terms in this Agreement, the Ad Standards shall govern. Company will not use the Services in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic; depict illegal activity; violate any law, regulation or third party right (including intellectual property and privacy rights); or that are deceptive or defamatory. tvScientific may immediately reject ads, suspend any campaign, or suspend Company’s use of the Services if tvScientific reasonably determines that Company is in violation of any of the foregoing.
During the Term and provided Company is in compliance with the Agreement, tvScientific (or the relevant Provider) grants Company a limited, non-exclusive, non-transferable and non-sublicensable right (a) to use the Services solely as described in the Agreement, and (b) if the Services include any code or other functionality deployed on the ads, to incorporate such code/functionality on the ads. Company may not resell the Services to any third party or assign any right to the Services to any third party
Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Company to tvScientific relating to the Services, the Providers or any other services or products of tvScientific or its Providers (collectively, “Feedback”) are provided voluntarily. Company agrees that all Feedback may be used by tvScientific without compensation, accounting or attribution to Company, and Company grants a perpetual, irrevocable, fully paid up right and license to the Feedback. Nothing in this Agreement shall tvScientific from using general learning and know-how arising from tvScientific’s provisions of Services.
tvScientific and Providers may use Company’s name and logo on their marketing and promotional materials, press releases or otherwise disclose that Company has entered into an agreement with tvScientific. Except as described in this paragraph, neither party will make any public statement about this Agreement without the other party’s prior written agreement (email sufficing).
Company and the ads will comply with all applicable laws, regulations and rules and will not infringe any third party rights. In making the Services available to Company, tvScientific will comply with all applicable laws, regulations and rules, including laws related to privacy and data protection.
Company represents and warrants that the ads: (a) comply with all laws and regulations, (b) do not breach and have not breached any duty toward or infringed any rights of any person including, without limitation, intellectual property and privacy rights, and (c) do not include or present unlawful content or speech or malicious code (e.g., software viruses), any content encouraging, supporting, assisting, providing instructions or advising in the committing of a criminal offense, or any content that may be considered threatening, abusive, harassing, defamatory, libelous, vulgar, violent, obscene, pornographic, drug related or racially, ethnically or otherwise objectionable.
Without limiting the foregoing, Company will comply with all applicable privacy and data protection laws, including the CCPA and the GDPR if applicable, in addition to any other laws and regulations related to the processing of personal data which may be restricted or prohibited under applicable laws, or may be conditioned upon the consent of data subjects and consumers. To the extent the CCPA applies, tvScientific will act as a service provider to Company. tvScientific will not, and certifies that it will not, collect, retain, use, sell, or otherwise disclose personal information (as defined by the CCPA and the GDPR) for any purpose other than for the specific purpose of performing the Services or as otherwise required by law. Company acknowledges that Providers and inventory providers may have different practices than tvScientific with regard to personal information and that Company is solely responsible for reviewing such practices.
Subject to any data processing terms between the parties, tvScientific and Providers may use and share the data collected during the performance of the Agreement to provide Company with the Services and support, improve, enhance, and customize the Services, develop additional services, send Company Service-related recommendations and suggestions, collect and pay fees, conduct administrative activities necessary to maintain and provide the Services, enforce this Agreement, take action in any dispute or legal proceeding involving Company, prevent fraud, misappropriation, infringement, identity theft and other illegal activities and misuse of the Services, and as otherwise allowed by applicable law and the data processing terms, if applicable.
“Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should reasonably be understood to be confidential. “Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party; or (c) was independently developed by the receiving party without violation of this Agreement. tvScientific Confidential Information means the terms of this Agreement and the details and information regarding the Services that Company may be exposed to during the performance of the Agreement, including tvScientific’s and Providers’ business practices, documentation, presentations and technical support materials.
The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, disclose Confidential Information only to its staff, agents and consultants who need to know it for purposes of this Agreement, and use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party.
The receiving party (or a Provider) may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. All non-public information made available to Company by tvScientific, Providers and/or related to the Services, including this Agreement and information generated by or derived from the Services, is tvScientific’s Confidential Information.
tvScientific may suspend provision of and access to the Service if, in tvScientific’s sole discretion, tvScientific reasonably believes that Company is violating this Agreement, including any Provider requirements, or that the Service is being used to engage in any promotional or marketing activities which (i) violates or infringes upon the privacy or intellectual property rights of any third party; or (ii) violates any law, statute, ordinance, regulation, directive or policy.
Unless an IO states otherwise, either party may terminate this Agreement on 48 hours written notice. Upon notice of termination, any minimum fees shall continue to apply through the calendar month of the effective date of termination.
Notwithstanding any other provision of the Agreement, tvScientific may terminate the Agreement in whole or in part (including some or all IOs) immediately upon notice, without liability to Company, if (a) termination is required by law, regulation, order, or request of a governmental authority or agency or (b) continued provision of the Service(s) may create liability for Company, tvScientific or Providers, including because of developments in applicable law and regulation. The obligations under sections that contemplate performance or observance subsequent to termination or expiration of this Agreement.
tvScientific shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and their respective successors, heirs and assigns) (“Company Parties”) against any claim, liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Liabilities”) incurred by the Company Parties in connection with any third party claim that tvScientific’s proprietary technology that provides the Services, in the form provided by tvScientific, infringes any US patent or other third party intellectual property right. Company shall indemnify, defend and hold harmless tvScientific and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (“tvScientific Parties”) against any Liabilities incurred by the tvScientific Parties in connection with any third party claim arising out of or relating to (a) Company’s (including its clients) use of the Services in contravention of any terms of this Agreement; or (b) any advertisement or other material with which Company uses on or in connection with the Services (including the ads, landing pages and other materials of Company and its clients). The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide assistance reasonably necessary to defend such claim. Without the indemnified party’s prior written consent, which, in the case of (i) and (ii) below, shall not be unreasonably withheld or delayed, the indemnitor shall not enter into any settlement or compromise that (i) would not fully absolve the indemnified party of liability, (ii) would contain any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of the indemnified party, or (iii) would restrict or limit the indemnified party’s business or operations.
If the Services are held in a suit or proceeding to infringe any intellectual property rights of a third party and the use of such Services is enjoined, or tvScientific reasonably believes that it is likely to be found to infringe or likely to be enjoined, then tvScientific may, at its sole cost, expense and option, either (a) procure the right to continue using such Services, or (b) modify such Service so that it becomes non-infringing without affecting the basic functionality; provided, however, that if (a) and (b) are not practicable, tvScientific may, in its sole discretion, terminate this Agreement with respect to such Services by giving Company 30 days written notice, upon which termination tvScientific shall refund the portion of any pre-payments made by Company for services not yet rendered. tvScientific’s obligations as stated in this section are Company’s sole remedy and tvScientific’s sole liability arising out of or relating to such infringement claims.
Company acknowledges that Providers may (a) maintain and improve the Services at their sole discretion, including deciding whether and when to issue bug fixes and updates, (b) change the layout, design, scope, features or availability of the Services, including in ways that cause malfunctions, (c) suspend the Services in whole or in part, (d) discontinue the Services in whole or in part, and/or (e) terminate tvScientific’s ability to provide all or part of the Services. Any of these things may happen at any time, with or without notice, for all publishers or only for certain publishers, and for any reason or no reason. tvScientific and its Providers will have no liability arising from or relating to any of the foregoing.
Company is solely responsible for ensuring that the ads are suitable for the Services and vice versa.
EXCEPT FOR THE REPRESENTATION AND WARRANTY EXPRESSLY MADE HEREIN, NEITHER PARTY, ITS PROVIDERS, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES AND AGENTS MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON INFRINGEMENT. NEITHER PARTY HAS MADE ANY REPRESENTATION AS TO THE POTENTIAL REVENUES THE OTHER PARTY MAY REALIZE. THE SERVICES ARE PROVIDED AS IS, WITH NO WARRANTY AS TO CONTINUOUS OR ERROR FREE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR INDEMNITY OBLIGATIONS, BREACHES OF CONFIDENTIALITY OBLIGATIONS, AMOUNTS OWED UNDER THIS AGREEMENT AND ANY MINIMUM FEES:
(A) IN NO CASE SHALL EITHER PARTY’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED IN THE AGGREGATE, THE SUM OF THE AMOUNTS PAID TO TVSCIENTIFIC FOR THE THREE MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
(B) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF OPPORTUNITIES, ARISING OUT OF THIS AGREEMENT OR ANY EXHIBIT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
tvScientific reserves the right to continually evolve the Services without notice. In the event tvScientific chooses to discontinue the Services, tvScientific will inform Company when Company logs into the Services, on the tvScientific website or by email, and the notice shall be effective immediately.
tvScientific reserves the right to change the Agreement at any time as required by a Provider. tvScientific will notify Company of any changes and Company is responsible for complying with any changes within the earlier of the timeframe required by the Provider or 10 days of the notice. Aside from such changes, the Agreement cannot be amended except with a writing signed by both parties.
As between tvScientific and Company, tvScientific and its Providers own all right, title and interest in everything related to the Services, including but not limited to all software, technology and processes, and all derivative works and improvements.
Company will inform tvScientific within one business day of becoming aware of any lawsuit, threatened lawsuit, governmental investigation or other governmental action related to any of the ads.
Notices may be given via email to a party’s primary contact and shall be effective immediately upon sending provided that the sender does not receive a response that the email did not successfully go through. Notices may also be given via personal delivery.
This is the entire agreement of the parties as to this subject matter. Neither party can assign this Agreement without the other party’s written consent, except that either party may assign this Agreement without consent to a corporate parent, subsidiary or affiliate or to an acquirer of the other party’s business. Any claim arising out of or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding. Aside from Providers, there are no third party beneficiaries to this Agreement. The parties have been represented in the negotiation and execution of this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel.
This Agreement is governed by the laws of the State of New York, excluding conflicts of laws principles. The parties will resolve any disputes in the state or federal courts of New York City, to whose exclusive jurisdiction and venue they irrevocably submit.
Any claims arising under or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
If any provision of this Agreement is unenforceable, the validity and enforceability of the remaining provisions will not be affected. No waiver will be effective unless it is in an explicit writing and signed by the waiving party.
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 degradation or failure of third party networks or communications infrastructure.