a. The “Services” are described in each IO signed by both Publisher and tvScientific. In the event of a conflict between these Publisher Terms and the IO, the IO will prevail.
b. Publisher will only use the Services with the “Online Assets” specified in an IO. Any additional online assets must be added by amendment or in a new IO. Publisher may not provide the Services to any third party or assign any right to the Services to any third party.
3. 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 separate agreement between the parties.
2. Term (Duration).
The “Term” of the Agreement begins on the Start Date shown in the first IO signed by the parties and ends when the last IO expires or terminates, unless terminated earlier as described below.
3. Technical and Additional Terms.
a. These Publisher Terms incorporate by reference all applicable technical specifications, policies and Service-specific terms provided by tvScientific in writing or shown at www.tvscientific.com/advertiser_terms/additional_terms (“Additional Terms”). Publisher will follow any other technical specifications that tvScientific provides to Publisher.
b. tvScientific’s third party service providers (“Providers”) may require different or additional terms for specific Services. tvScientific will provide any such terms to Publisher directly or by posting to the Additional Terms.
c. Publisher 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, or otherwise apply any procedure or process in order to ascertain, derive and/or appropriate the source code for the Services, or distribute viruses or malware or use the Services to gather competitive intelligence. Publisher shall not copy or otherwise reproduce the Services or remove, alter or destroy any proprietary markings appearing in or on the Services.
d. Publisher 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 the Agreement. To the extent that tvScientific assists Publisher with using the Services, Publisher consents to the actions that tvScientific performs on its behalf. Publisher retains sole responsibility for such assisted use of the Services.
e. If there is a conflict between the Additional Terms and these Publisher Terms, the Additional Terms shall govern.
4. Publisher Content
If Publisher sources any advertising or other content itself (“Publisher Content”) for use in connection with a Service, the following terms apply:
a. Publisher acknowledges that tvScientific or Providers may adapt or modify the Publisher Content as reasonably necessary for the proper performance of the Services;
b. Unless an IO states otherwise, Publisher is solely responsible for collecting any amounts owed for Publisher Content from its own advertisers and content providers. Within 15 days of the end of each month, Publisher will report the amount generated from the Publisher Content (“Publisher Earnings”) to tvScientific in writing (e.g., via email);
c. tvScientific will receive the percentage of Publisher Earnings stated in the IO. If tvScientific incurs third party costs related to Publisher Content (e.g., ad serving fees), Publisher is responsible for such costs; and
d. tvScientific may deduct the amounts described in Section 4(c) from the amount tvScientific owes to Publisher or, at tvScientific’s discretion, may invoice such amounts instead. Publisher will pay any such invoices within 30 days of the invoice date.
5. Payment and Related Issues.
a. Within 30 days of the end of each month, tvScientific will pay Publisher the percentage of Revenue stated in the IO for the Services used with your Online Assets. “Revenue” means the amount tvScientific has actually received for a given month from Providers for the Services used with your Online Assets during the Term, minus any amounts owed to Providers in connection with such Services, any clawbacks, refunds or deductions imposed by a Provider and any taxes owed on Revenue or as a result of this Agreement (other than tvScientific’s income tax). Unless otherwise agreed by tvScientific, amounts reported by tvScientific and its Providers shall be decisive.
b. If Publisher is under investigation by a Provider, tvScientific may withhold all payments until the investigation is closed. In addition, if Provider or another Provider imposes a refund, deduction or additional charge after the Term ends, Publisher will promptly reimburse tvScientific for such amount.
c. tvScientific reserves the right to offset any fees, Provider charges or other amounts from its payments to the Publisher, including, but not limited to, any amounts that tvScientific is entitled to under the Indemnification section of these Publisher Terms.
d. tvScientific’s fees do not include any present or future local, state, federal or foreign taxes, levies, fees or duties of any nature (“Taxes”). tvScientfic may charge applicable Taxes in addition to the fees due under this Agreement. Except for any Tax that tvScientific has charged to Publisher (and that Publisher has actually paid to tvScientific), Publisher 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 on account of any Taxes, unless Publisher is required by law to withhold Taxes from any payment to tvScientific. In such case, Publisher 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 the Agreement. If tvScientific is held responsible for any Taxes arising from the Agreement (aside from Taxes based on tvScientific’s net income), Publisher will reimburse tvScientific for such payments.
6. Licenses and Ownership.
a. During the Term and provided Publisher is in compliance with the Agreement, tvScientific (or the relevant Provider) grants Publisher a limited, non-exclusive, non-transferable and non-sublicensable right in the geography(-ies) shown in each IO, (a) to use the Services solely as described in the Agreement and only on the Online Assets, (b) if the Services include any code or other functionality deployed on the Online Assets (e.g., media players) or Publisher Content, to incorporate such code/functionality on the Online Assets or Publisher Content, and (c) if the Services include content for display (including advertising content), to publicly display such content solely as described in the Agreement and only on the Online Assets. Publisher may not resell the Services to any third party or assign any right to the Services to any third party.
b. Other than Section 6(a), the Agreement does not grant Publisher any other rights, including rights to any patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Services.
c. Publisher grants tvScientific and its Providers an unlimited, worldwide, non-exclusive, royalty-free perpetual and irrevocable license to use, copy, distribute, publicly display, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, sub-license, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with or incorporate into other content, modify and create derivative works any data or content provided by Publisher for the purpose of providing Publisher the Services.
d. As between tvScientific and Publisher, 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.
e. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Publisher to tvScientific relating to the Services, the Providers or any other services or products of tvScientific or its Providers (collectively, “Feedback”) are provided voluntarily. Publisher agrees that all Feedback may be used by tvScientific without compensation, accounting or attribution to Publisher, and Publisher grants a perpetual, irrevocable, fully paid up right and license to the Feedback. Nothing in this Agreement shall prevent tvScientific from using general learning and know-how arising from tvScientific’s provisions of Services.
tvScientific and Providers may use Publisher’s name and logo on their marketing and promotional materials, press releases or otherwise disclose that Publisher 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).
8. Compliance, Privacy and Data Use.
a. Publisher, the Online Assets and any Publisher Content will comply with all applicable laws, regulations and rules and will not infringe any third party rights. In making the Services available to Publisher, tvScientific will comply with all applicable laws, regulations and rules, including laws related to privacy and data protection.
b. Publisher is solely responsible for assessing its own legal obligations related to its use of the Services, including any notice, consent and opt out requirements arising from Providers’ and their advertising clients’ collection and use of end user data in connection with the display of ads on the Online Assets.
c. Publisher represents and warrants that the Online Assets and Publisher Content: (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.
d. Without limiting any of the foregoing, Publisher will comply with all applicable privacy and data protection laws, including the California Consumer Privacy Act (“CCPA”) and the General Data Protection Regulation (EU) 2016/679 (“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.
e. To the extent the CCPA applies, tvScientific will act as a service provider to Publisher. 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.
f. If an IO includes Services related to the European Economic Area, Switzerland or the UK, the tvScientific Data Processing Addendum (“DPA”) shall apply. If there is a conflict between the DPA and the Agreement, the DPA shall govern as to the conflicting term.
g. Subject to the DPA, if applicable, tvScientific and Providers may use and share the data collected during the performance of the Agreement to provide Publisher with the Services and support, improve, enhance, and customize the Services, develop additional services, send Publisher 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 Publisher, prevent fraud, misappropriation, infringement, identity theft and other illegal activities and misuse of the Services, and as otherwise allowed by the DPA, if applicable.
a. “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 the Agreement and the details and information regarding the Services that Publisher may be exposed to during the performance of the Agreement, including tvScientific’s and Providers’ business practices, documentation, presentations and technical support materials.
b. The receiving party will hold Confidential Information in strict confidence and 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.
c. 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 (to allow the disclosing party an opportunity to object to the disclosure) and complies with any protective order imposed on such disclosure. All non-public information made available to Publisher 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.
d. The parties agree that any violation or threatened violation of this Section will cause the disclosing party irreparable harm for which there is no adequate remedy at law. Each party waives any requirement for a bond in connection with any such claim for injunctive relief.
10. Suspension and Termination.
a. tvScientific may suspend provision of and access to the Service if, in tvScientific’s sole discretion, tvScientific reasonably believes that (i) Publisher is violating this Agreement or any Provider requirement or (ii) the Service is being used to engage in any promotional or marketing activities which (x) violates or infringes upon the privacy or intellectual property rights of any third party; or (y) violates any law, statute, ordinance, regulation, directive or policy.
b. Unless an IO states otherwise, either party may terminate this Agreement on 24 hours written notice.
c. Termination or suspension will not prevent tvScientific or Providers from taking any other actions or measures available to them under the Agreement, as applicable.
d. Upon termination of this Agreement, Publisher will promptly cease to use the Services, including any content and technology provided as part of the Services. If tvScientific has provided access to online reporting, such access will end upon termination unless the parties agree otherwise in writing. Upon tvScientific’s request, Publisher shall immediately remove (or permit tvScientific to remove) any code provided to Publisher to integrate with the Online Assets or Publisher Content.
e. 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 Publisher, 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 Publisher, tvScientific or Providers, including because of developments in applicable law and regulation.
f. Those provisions that by their nature do not necessarily terminate upon expiration or expiration of the Agreement shall survive.
11. Mutual Indemnity.
a. Publisher will indemnify, defend, and hold harmless tvScientific, its Providers and each of their officers, directors, shareholders, employees and agents (“Services Parties”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) incurred by the Services Parties (including claims made against tvScientific by a Provider) from third party claims arising from or related to (i) breach of any Publisher representation and warranty, (ii) violation of the Agreement, including any incorporated Publisher Terms, or (iii) Publisher, the Online Assets or Publisher Content. tvScientific will indemnify, defend, and hold harmless Publisher, its officers, directors, shareholders and employees (“Publisher Parties”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) incurred by the Publisher Parties from third party claims (A) 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; or (B) arising from or related to a claim by a Provider that tvScientific is not entitled to provide the Services as described in this Agreement.
b. The indemnified party will provide the indemnitor with prompt notice (in any event within 15 days of the service of the citation or summons) 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. Indemnitor may elect to direct the defense or settlement of any proceeding by giving written notice to the indemnified party. 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. An indemnified party will not settle, or consent to any entry of judgment, in any proceeding without first obtaining written consent of the indemnitor.
c. 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 (i) procure the right to continue using such Services, or (ii) modify such Service so that it becomes non-infringing without affecting the basic functionality; provided, however, that if (i) and (ii) are not practicable, tvScientific may, in its sole discretion, terminate this Agreement with respect to such Services by giving Publisher 30 days written notice, upon which termination tvScientific shall refund the portion of any pre-payments made by Publisher for services not yet rendered. tvScientific’s obligations as stated in this section are Publisher’s sole remedy and tvScientific’s sole liability arising out of or relating to such infringement claims.
12. Changes to Services.
Publisher 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.
13. Disclaimer of Warranties.
a. Publisher is solely responsible for ensuring that the Online Assets and Publisher Content are suitable for the Services and vice versa.
b. 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. THE SERVICES PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ADS DISPLAYED ON THE ONLINE ASSETS IN CONNECTION WITH THE SERVICES AND DO NOT GUARANTEE ANY MINIMUM AMOUNT OF SERVICES OR MONETIZATION.
c. The Services may contain content and/or links to third party websites and other online/digital properties. tvScientific does not operate or monitor such content or properties. Publisher may find them, or the information and content posted therein not compatible with Publisher’s requirements, or Publisher may object to their content, or find it to be annoying, improper, unlawful or immoral. tvScientific does not endorse, or sponsor such content or properties, or confirm their accuracy, credibility, authenticity, reliability, validity, integrity, or legality. tvScientific assumes no responsibility or liability for such third-party content or properties.
14. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES PARTIES SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THIS AGREEMENT, ANY ADS OR ADVERTISERS, OR THE USE OF OR INABILITY TO USE THE SERVICES AND RELATED SYSTEMS, EVEN IF tvSCIENTIFIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF THE SERVICES PARTIES FOR DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY tvSCIENTIFIC TO PUBLISHER UNDER THIS AGREEMENT FOR THE THREE MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
a. tvScientific reserves the right to continually evolve the Services without notice. In the event tvScientific chooses to discontinue the Services, tvScientific will inform Publisher when Publisher logs into the Services, on the tvScientific website or by email, and the notice shall be effective immediately.
b. tvScientific reserves the right to change the Agreement at any time as required by a Provider. tvScientific will notify Publisher of any changes and Publisher 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.
c. Publisher 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.
d. 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.
e. 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.
f. 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.
g. 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.
h. 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.