Company will provide complete, accurate information related to its account, clients and ad campaigns; inform tvScientific if that information changes; and immediately notify tvScientific of any accidental disclosure or unauthorized use of Company’s account or access credentials. Company is responsible for keeping its access credentials secure and for all activities using those credentials and in its accounts.
2. Platform and Services
2.1 Subject to this Agreement and as long as Company is not in breach of its obligations herein, tvScientific grants Company a non-exclusive, non-transferable right to access and use the Platform solely to purchase advertising inventory and manage advertising campaigns for itself or for Company’s third party clients.
2.2 In addition, Company may engage tvScientific to provide managed services, including implementing ad campaigns and purchasing advertising inventory (“Managed Services”). The parties will agree to the details of Managed Services in writing.
2.3 Company will obtain and grants to tvScientific all rights and permissions reasonably necessary to buy inventory on Company’s behalf (and on behalf of any client), perform tracking and analytics, and store and serve ads. To the extent that Company requests tvScientific’s help to use the Services, Company consents to the actions that tvScientific performs on its behalf. Company retains sole responsibility for such assisted use of the Services.
2.4 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.
2.5 tvScientific does not currently offer its Services in, or support user accounts from, Switzerland, the UK or countries in the European Economic Area.
2.6 Company shall keep confidential any tvScientific or third party data resources provided through the Platform (“Data Resources”), and use such Data Resources solely for purposes of planning and administering campaigns, including post-campaign analysis. For clarity, Company may not (i) extract Data Resources; (ii) disclose, display, copy, transmit, reproduce, or duplicate the Data Resources for any purposes except as expressly stated in this section; (iii) make any use whatsoever, whether internally or externally and whether for commercial purposes or otherwise, of any Data Resources or information derived therefrom except through the Platform as permitted in this section; or (iv) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this section the Data Resources.
3. Technical and Additional Terms
This Agreement incorporates by reference all applicable technical specifications, policies and terms for specific third party service providers (“Providers”) provided by tvScientific in writing or shown at [https://www.tvscientific.com/publisher-terms-and-conditions] (collectively, “Additional Terms”). In the event of a conflict between the terms shown in this document and applicable Additional Terms, the Additional Terms shall govern.
4. Licenses and Ownership
4.1 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.
4.2 As between tvScientific and Company, tvScientific and its Providers own all right, title and interest in the Services, including but not limited to all software, technology and processes, and all derivative works and improvements. Aside from the rights granted herein, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder. 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.
5. Analytics Pixels and Tags
In order to provide campaign analytics, tvScientific may append a pixel to Company’s ads 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.
Company will use the Services only for its own use or for clients that have authorized Company to do so. Company will not (i) attempt to circumvent security measures, (ii) share its login credentials with any third party, (iii) reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any tvScientific-provided pixel, tag, Data Resources or the Services, (iv) distribute viruses or malware, (v) use the Services to gather competitive intelligence, (vi) interfere with the proper functioning or performance of the Platform or Services, (vii) share its Platform login with, or otherwise grant access to the Platform or Services to, any third party without express notification to and approval by tvScientific, (viii) use or authorize the use of the Platform or Services for any purpose not permitted under this Agreement, (ix) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Platform or any Service, or use the Platform or Services for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (x) utilize rotating ad tags or otherwise violate the Ad Standards, (xi) create targeting profiles or segments on the basis of the publisher online properties that a user has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher. tvScientific may immediately suspend Company’s access or terminate this Agreement upon its reasonable belief that Company has breached any provision of this section.
7. Payment and Related Issues
7.1 Company’s credit or debit card will be charged at the end of each month, or when Company’s total ad spend across all campaigns reaches a billing threshold of 500.00 in local currency unless otherwise adjusted up or down in writing by tvScientific. Company’s billing threshold is an amount of spend across all of campaigns that triggers a charge once reached. If, tvScientific invoices Company for amounts owed under this Agreement, Company will pay each invoice within 20 days of the invoice date. 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. If Providers assess creative approval fees, tvScientific may pass such fees on to Company.
7.2 Company may be subject to a credit check prior to first using the Services and from time to time. tvScientific reserves the right to determine the amount of credit that it extends to Company at any time. 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). 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).
7.3 “Taxes” means taxes, levies, fees or duties of any nature based on or arising from the Products and/or the Agreement, not including taxes on tvScientific’s net income. tvScientific’s fees do not include Taxes. tvScientific may charge applicable Taxes in addition to its fees, unless Company provides timely, fully completed resale exemption documentation for the applicable jurisdictions. Except for Tax that tvScientific has charged to Company and that Company has actually paid to tvScientific, Company is responsible for remitting all Taxes. All payments shall be made without setoff or deduction, including for Taxes, unless Company is legally required to withhold Taxes from payments to tvScientific. In that case, Company will pay the additional amounts necessary to make each net payment to tvScientific (i.e., after Tax withholding) no less than the original amount of fees due. If tvScientific is held responsible for any Taxes, Company will reimburse tvScientific.
8.1 As between the parties, each party owns all right, title and interest in its data (Company as to the data it imports into the Platform (“Company’s Data”) and tvScientific as to all data residing in the Platform aside from Company’s Data, third party Data Resources and Services Data (“tvScientific Data”). tvScientific will use Company’s Data solely to provide Services under this Agreement. Company may use tvScientific Data solely in connection with its use of the Platform and Services.
9. Beta Features
If tvScientific allows Company to use beta features, those features are provided on an “as is” and “as available” basis, without any representations, warranties, covenants, liability or obligations of any kind. tvScientific may modify or terminate beta features at any time.
10.1 Each party will take reasonable measures to ensure that users are provided privacy disclosures on websites and other online properties (“Sites”) where data is collected and used in association with the Services. Each party will have, and will make commercially reasonable efforts to contractually obligate their partners who may provide or use data in association with the Services to have, privacy disclosures that are prominently from their Sites. “Privacy disclosures” means (a) a description of the collection and use of data from and about users for advertising purposes by third parties such as tvScientific, and (b) access to an opt in or opt out choice with respect to such data collection that applies to tvScientific, including with respect to cookies and similar technologies as is required by law or otherwise in accordance with industry self-regulatory principles. Each party will take reasonable steps to ensure that all Privacy Notices accurately describe data collection and use associated with Company’s use of the Services and, at minimum, include the information required and meet the standards for notice to users set by the Network Advertising Initiative (“NAI”) in the NAI Code of Conduct and associated guidance, including as relevant to the circumstances, the guidance on Viewed Content Advertising, Cross-Device, Non-Cookie Technologies, and any superseding, additional, or supplementary guidance (“NAI Code”). Additionally, each party will, in all applicable respects, follow the requirements of the applicable local self-regulatory program such as the DAA Self-Governing Principles in the US (currently found at aboutads.info).
10.2 Without limiting Company’s obligations under any applicable law, Company shall not cause tvScientific or the Platform to process any Prohibited Data. “Prohibited Data” means: (a) any information regarding an individual user’s specific health condition or any information or inference regarding health that would be considered sensitive under the NAI Code; (b) any information associated with a persistent identifier that is: (i) from or about individuals Company knows or should know are children (children being individuals less than the greater of 13 years of age or the age defined by law in any applicable jurisdiction), (ii) any information from inventory that Company knows or should know is directed to children, or (iii) any user or audience segments directed at or identifying children; (c) any Identifying Information; or (d) any other information that would be considered protected, sensitive, special, or similar under applicable local law or local self-regulatory program, such as PHI as defined under the Health Insurance Portability and Accountability Act of 1996. Company shall not combine any tvScientific Data or Services Data with any Identifying Information or use any tvScientific Data or Services Data to, or attempt to, directly identify an individual. Company shall not use the Platform or any tvScientific Data or Services Data for any non-marketing purposes, including without limitation decisions relating to eligibility for, or pricing of, employment, credit, health care, insurance, housing, or education. tvScientific may restrict the data that it allows or makes available on the Platform in its reasonable discretion to protect user privacy. If Company learns that it provided tvScientific or caused tvScientific to process any Prohibited Data, Company shall immediately notify tvScientific and take all necessary steps to assist tvScientific in responding to the breach by removing the data and doing anything else necessary to come into compliance, at Company’s sole cost.
10.3 “Identifying Information” means data that directly identifies or reasonably can be used to directly identify an individual, including name, raw (unhashed) email address, postal address, phone number, or government identifier. For the avoidance of doubt, Identifying Information does not include (a) cookie identifiers; (b) advertising identifiers assigned by mobile devices; (c) IP addresses; (d) other forms of device identifiers generally accepted for use in relation to advertising; and (e) demographic, interest, or browsing behavior data associated with such identifiers.
10.4 For any data that Company or its clients collect using the Platform or upload into the Platform, or direct to be collected or uploaded, such as by using Platform features like pixels, tags, cookies, or APIs, Company will ensure that all necessary rights and permissions are established for the use of such data in the Platform and in association with the Services, and that such use of the data is strictly in compliance with all applicable laws and applicable self-regulatory requirements. In addition, tvScientific reserves the right to place the AdChoices icon (or a similar icon) on the ads provided by Company via the Platform that do not already include such icon and pass through such fees.
10.5 Without limiting the foregoing, Company will comply with all applicable privacy and data protection laws, including the CCPA 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) 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 use and sale of personal information and that Company is solely responsible for reviewing such practices.
10.6 The parties agree that certain jurisdictions may impose data privacy requirements that are additional to those contained in this Agreement. To the extent that tvScientific processes data on Company’s behalf that is from or about individuals in regions where these additional requirements are prescribed, the parties will exercise good faith efforts to enter into appropriate additional terms.
11.1 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, U.S. governmental agency rules, regulations and guidance advertising and communications. 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.
11.2 Company represents and warrants that the ads: (a) comply with all laws and regulations, (b) do not breach any third party rights, and (c) do not include unlawful content 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.
11.3 The Platform (or portions thereof) may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. Company shall abide by all applicable export control laws, rules and regulations applicable to the Platform. Company agrees that it will not export, re-export, or transfer the Platform, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.
12. Suspension and Termination
12.1 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 the parties have agreed otherwise in writing, 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.
12.2 Notwithstanding any other provision of the Agreement, tvScientific may terminate the Agreement in whole or in part (including some or all active campaigns) 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.
13. Disclaimer of Warranties
Company is solely responsible for ensuring that the ads are suitable for the Services and vice versa.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES 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. TVSCIENTIFIC MAKES NO REPRESENTATIONS REGARDING THE BENEFITS TO COMPANY FROM THE PLATFORM, OR THAT THE PLATFORM OR ANY INFORMATION PROVIDED BY INVENTORY PARTNERS AND/OR DATA PROVIDERS WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION. THE SERVICES ARE PROVIDED AS IS, WITH NO WARRANTY AS TO CONTINUOUS OR ERROR FREE SERVICE.
14. Limitation of Liability
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, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Mutual Indemnification
15.1 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 Providers, 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.
15.2 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.
16.1 “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.
16.2 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.
16.3 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.
17. Changes to Services
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.
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).
19.1 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.
19.2 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.
19.3 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.
19.4 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.
19.5 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.
19.6 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.
19.7 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.
19.8 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.