Master Service Agreement

The following Master Service Agreement including any outside policies referred to or linked from these terms (the “MSA”) shall be incorporated by reference into and govern all Service Orders between Make Me Reach S.A.S d.b.a. Paragone and its affiliated companies (“Company”) and the Customer set forth on the Work Order (the “Customer”). In any case of contradiction between the Service Order and this MSA, the terms of the Service Order shall prevail. All capitalized terms used but not defined in the Service Order shall have the meanings set forth in this MSA. By signing and submitting a Service Order to Company, Customer indicates that it has read and consented to this MSA.

MASTER SERVICE AGREEMENT

Company and Customer shall each be referred to as “Party” and collectively as the “Parties”. WHEREAS Company is a provider of certain campaign management platform and related services; and

WHEREAS Customer desires to purchase certain campaign management platform and related services from Company as per the terms and conditions of this MSA and any applicable Service Order.

NOW THEREFORE, the Parties, in consideration of the mutual covenants and agreements hereinafter set forth, agree as follows:

1. DEFINITIONS

  • 1.1.”Ad” means any advertisement provided by Customer.
  • 1.2.“Ad Account” means a predefined advertising account, connected to the Company’s online platform, associated with a supported Third Party Platform (for example, Facebook).
  • 1.3.”Customer” means the Customer as listed above and on the applicable Service Order.
  • 1.4.”Advertising Materials” means artwork, copy, or active URLs for Ads.
  • 1.5.”Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, above fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation).
  • 1.6.”Agency” means an advertising agency listed in the applicable Service Order which acts as an agent of a Customer.
  • 1.7.”Managed Service Basis” means the provision of the Service on a managed basis.
  • 1.8.“Media Spend” means the investments in Third Party Platforms’ ad inventory recorded by the Company’s platform, regardless of whether or not the Customer or Agency conducted the advertising campaigns using the Service.
  • 1.9.“Media Spend Fees” means the fees, based on the Media Spend, which will be charged to the Customer (and/or Agency) for use of the Service.
  • 1.10.“Media Spend Allotment” means the Media Spend allowance included under a Service Plan for the subscribed period as set forth in the Service Order.
  • 1.11.“Additional Media Spend Package” means an additional Media Spend allowance subscribed for by the Customer.
  • 1.12.“Additional Media Spend Fee” means additional Media Spend Fees which will be charged to the Agency for Media Spend in excess of the Media Spend Allotment.
  • 1.13.”Policies” means, collectively, all applicable rules, terms, conditions, requirements, and technical standards of Company, the applicable Third Party Platform, and/or other third parties available through the Service, content guidelines and standards, privacy policies and user experience policies.
  • 1.14.”Prohibited Activity” means: (a) activity or use of content (including, without limitation, signs, images, or texts) that (i) violates any applicable law, regulation or order of any court or tribunal including, but not
  • limited to, collecting personal information from any individuals under the age of 13 in violation of the Children’s Online Privacy Protection Act of 1998; (ii) affects the security or privacy of end users; or (iii) materially interferes with Web navigation or browsing; (b) usage which adversely affects public or private infrastructure or equipment; (c) use of Ads, Advertising Material and/or other content which is, promotes, or advocates pornographic, obscene, excessively profane, racial, libelous, gambling-related, discriminatory, offensive or deceptive material, weapons or ammunition, or any type of malware; (d) using in connection with the Ads and/or the Advertising Materials, any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; or (e) any activity which does not comply with the Policies.
  • 1.15.”Service” means Company’s campaign performance and management platform and related services, actionable performance monitor (APM), application programming interface (API), systems and software, along with any documentation that accompanies it, that enables Customers to conduct advertising campaigns; the Service may be provided based on the applicable Service Plan and/or on a Managed Service Basis, as shall be specified in the Service Order and the MSA.
  • 1.16.”Third Party Platforms” means third party websites, social networks, services and/or platforms, through which Ads are distributed.
  • 1.17.“Customer Allowed Users” means the maximum number of individual users which can access the Service, as set forth in the Service Order.
  • 1.18.“Agency Allowed Customers” means the maximum number of Agency Customers which Agency can manage campaigns through the Service, as set forth in the Service Order. such Agency Allowed Customer shall be granted access to the Service on a view-only basis.
  • 1.19.“Feature Set” means the different features made available by the Company based on the applicable Service Plan as set forth in the Service Order; the Company may, at its sole discretion, Company may amend, reduce or update the features included and/or otherwise made available by Company in the Feature Set from time to time.

2.DESCRIPTION OF SERVICE

  • 2.1.Company, either directly or through its affiliates, agrees to provide to Customer the Service described in the individual service orders submitted by Customer and approved by Company (each a “Service Order”).
  • 2.2.License. During the term of any Service Order hereunder and subject to the MSA, Company hereby grants to Customer a limited, non-exclusive, non-assignable, non-transferable, non- sublicensable, revocable license, to access and use the Service for creating, managing and optimizing digital advertising campaigns. Customer authorizes and appoints Company to fulfill agreements and/or facilitate the purchase of Ad inventory for the delivery of Ads on the Third Party Platforms, as further described in the relevant agreement, including these terms.
  • 2.3.Service Plan. During the term of the MSA and the applicable Service Order, Customer shall have the option to subscribe to different service plans each of which may offer different features, Media Spend Allotment, Additional Media Spend Packages and different service levels, all as set forth in the Service Order (a “Service Plan”). Customer shall have the right, at any time, to upgrade the Service Plan to a higher Service Plan and to add Media Spend Package under the then current Service Plan. A decrease of a Service Plan is not allowed. Unless stipulated otherwise in the Service Order, once Customer reached the Media Spend Allotment, then, Company will charge Customer
  • for the Additional Media Spend Package or the Additional Media Spend Fee (as the case may be) as shall be described in the Service Order. Each of the Media Spend Allotment and/or the Additional Media Spend Package can be utilized by the Customer until the end of the then current term of the MSA and the applicable Service Order and cannot be carried over.
  • 2.4.Managed Service. During the term of a Managed Service Basis, Customer authorizes and appoints Company to manage digital advertising campaigns on behalf of Customer on the Third Party Platforms, as further described in the applicable Service Order, including the MSA. Customer may be granted limited access to the Company’s online platform for monitoring purposes, in which case, Company hereby grants to Customer, a limited, non-exclusive, non-assignable, non- transferable, non-sublicensable, revocable license, to access and use the Service for such purpose.
  • 2.5.Customer acknowledges that Company cannot guarantee the achievement of spending, sales, subscriptions and/or any other performance goals related to campaigns conducted through the Service and shall not be held liable for the performance of and/or results obtained through the Third Party Platforms.
  • 2.6.Additional Services. Subject to and upon the execution of the MSA and the applicable Service Order, Customer may purchase add-ons features and/or additional services, all as shall be set forth in the Agreement.
  • 2.7.Ownership and Reservation of Rights. Company is, and shall be, the sole and exclusive owner of
  • all right, title, and interest (including without limitation all intellectual property rights) in and to the Service, as well as any modifications, improvements, and/or derivatives to or of the Service (regardless of inventorship or authorship). All rights which are not expressly granted herein are reserved by Company. Customer may not make any use of the Service, in whole or in part, in any manner not expressly permitted by this MSA. Customer acknowledges and agrees that Customer remains fully and solely responsible and liable for how the Customer uses the Service, and, to the extent applicable, for any setting or optimization carried out through the Service to place Ads on the Third Party Platforms, and for achieving its intended goals.
  • 2.8.Access. During the term of the MSA and the applicable Service Order, if any of Customer, Agency and/or Agency Allowed Customers is granted access to the Service, they will be assigned with a single user name and password per each individual Customer Allowed User (“Credentials”). Confidentiality of the Credentials must be kept and must not be disclosed to any third party. The Company prohibits user login sharing, sharing of user Credentials, shared logins or passwords. Therefore, Credentials may not be shared and additional users require the purchase of additional licensing. Customer or the Agency (as the case may be) shall be primarily responsible and liable for any activity by any person who uses the Service on their behalf. Customer and/or the Agency are responsible for maintaining the confidentiality of the Credentials and for any liability resulting from disclosure of them. Customer or Agency agrees to immediately notify Company in writing of any unauthorized use of the Service or any other breach of security known or suspected. Access to the Service shall be suspended 48 hours following termination and/or expiration of the MSA and the applicable Service Order.
  • 2.9.Restrictions. Customer will not attempt to interfere with or disrupt the Service or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Service for Customer’s own use as permitted herein). Except as expressly specified in this MSA, and as a condition to the licenses and rights granted herein, Customer will not do any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party
  • (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (j) use any hardware, software, device, or technique to circumvent any limitations or conditions on the scope of the Service; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service by Customer; (l) take any action that imposes or may impose (as determined in Company’s sole reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use the Service to infringe or violate any third party rights (such as intellectual property rights or privacy rights) or any law or regulation.
  • 2.10.Promotional Trial Access. Subject to the MSA, and as may be set forth in the Service Order, Company may offer various trials or other promotional access to the Service (the “Trial Access”) at such terms as shall be determined solely by Company.
  • 2.11.Third Party Platform Access. In order to create, manage and optimize digital advertising campaigns on Third Party Platforms through the Service, Customer may need to have, and actually be signed-in to, an active account at the applicable Third Party Platform (the “Third Party Platform Account”). Customer is solely responsible for registering any such accounts, as well as the payment of any fees in connection with the activity of such Third Party Platforms. Customer acknowledges that Company shall have no liability for Customer’s engagement with such Third Party Platforms.
  • 2.12.Third Party Platform Features. In order to use some capabilities and features of the Service that are available through the Third Party Platforms (for example Facebook), Customer may need to provide Company with certain authorizations and permissions to interact with Customers’ Third Party Platform Account. If Customer chooses to use such capabilities and features, then Customer hereby: (i) authorizes Company to interact with the Customer’s Third Party Platform Account in order to provide the Service to Customer and to enable Customer to generate and place Ads; and (ii) agrees to cooperate with Company and provide Company with any authorizations, permissions and information that Company requires in order to interact with Customer’s Third Party Platform Account as contemplated under this MSA and the applicable Service Order. Customer acknowledges that any failure to take any of the foregoing steps set forth in (i) and (ii) of this section may restrict Company from interacting with Customer’s Third Party Platform Account and may prevent Customer from being able to use certain capabilities and features of the Service.
  • 2.13.Importing Campaigns. Customer acknowledges and agrees that in the event that Customer selects to connect any of its Ad Accounts to the Service, any existing and future campaigns on such Ad
  • Accounts shall be automatically imported to the Service and shall be included in any calculations under the Service, including for volume, usage and pricing purposes.
  • 2.14.Service Order Details; Amendments. From time to time, Customer may initiate Service Orders which shall include all relevant information. Service Order shall only become valid and binding once signed by both parties. Additional information may be specified by certain Customers in a dedicated contract, to be agreed in writing with Company. Any amendment to any Service Order must be made in writing and signed by both parties, except that Company may amend any MSA and the applicable Service Order pricing on thirty (30) days’ prior written notice to Customer, such price change to take effect only in the next renewal term of an existing Service Order. For clarity, any discount(s) applicable during the agreed term of any Service Order shall not renew or apply in any subsequent renewal term, unless otherwise expressly stated in the Service Order. For the removal of any doubt, Customer acknowledges and agrees that Customer is fully and solely responsible and liable for any campaign specifications.
  • 2.15.Agency. If an Agency enters into an MSA and the applicable Service Order for the benefit of an Customer, such Agency hereby assumes all responsibilities and obligations of Customer under this MSA and any applicable Service Order (including, without limitation, payment and confidentiality obligations, representations and warranties), and, unless otherwise specified hereunder, any reference to Customer shall be construed as a reference to Agency; upon request, Agency will make available to Company written and signed confirmation of the relationship between Agency and Customer. This confirmation shall include, for example and without limitation, Customer’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the MSA and the applicable Service Order.

3.DURATION

  • 3.1.This MSA shall enter into effect on the Effective Date and shall continue in effect for a term of one (1) year as of the Effective Date (“Initial Term”). Thereafter this MSA shall continue in effect until all Service Orders hereunder have expired or have been terminated in accordance with section 8.1 below.
  • 3.2.The term of each Service Order shall be as stated in the Service Order (the “Service Order Term”).
  • 3.3.Nothing contained herein shall obligate either Party to enter into one or more Service Orders without both Parties’ mutual written consent.

4.AD PLACEMENT AND POSITIONING

  • Company does not guarantee that Ads will be placed in, or available through, any part of the Third Party Platforms, nor does Company guarantee that Ads will appear in a particular position or rank, nor the delivery, number of conversions and/or clicks etc. Certain Third Party Platforms may permit Customer to specify that certain Ads will not be placed adjacent to certain content, exclude certain categories of Ads or impose other restrictions (“Editorial Guidelines”). In such cases, Company will have no obligation or liability in relation thereto.

5.ADVERTISING MATERIALS

  • 5.1.Submission.
  • 5.1.1.Where the Service is provided on a Managed Service Basis, Customer undertakes to timely submit all Advertising Materials necessary for Company to create and manage digital advertising campaigns on its behalf, in accordance with the applicable Service Order, MSA and its terms. Any delays in the delivery of any such Advertising Materials from the Customer to the Company, or failure to deliver them altogether, may result in delays to the creation and/or modification of campaigns, which will not in any case relieve Customer of its payment obligations set forth in the
  • Agreement, including this MSA, even if no digital advertising campaigns were run during the relevant period.
  • 5.1.2.The Service does not operate as an archive or file storage service. Company is under no obligation to store and/or otherwise archive any Advertising Materials, and Customer is solely responsible for the backup of all Advertising Materials.
  • 5.1.3.Subject to this MSA, Customer hereby grants to Company a royalty-free, paid-up, non-assignable, non-transferable, non-sublicensable (except to any third party hosting providers of the Service) license during the term, to use, reproduce, modify, distribute, transmit, display and access the Advertising Materials for use in accordance with this MSA.
  • 5.2.Compliance.
  • 5.2.1.Company reserves the right to refuse, reject, cancel and/or remove any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), and/or the website to which the Ad is linked (i) do not comply with the Policies, (ii) in Company’s sole reasonable discretion, constitute and/or contain Prohibited Activity, and/or (iii) may tend to bring disparagement or liability upon Company or any of its Affiliates.
  • 5.2.2.Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Customer’s prior written approval or direction. Notwithstanding the foregoing, Customer acknowledges that Ads and Advertising Materials submitted to the Third Party Platform may be resized and/or otherwise modified by the Third Party Platform pursuant to their terms and Policies; Customer acknowledges and agrees that: (i) Company shall have no liability with respect to any such editions and/or other modifications; and (ii) Customer shall have no claims towards Company in connection therewith.
  • 5.3.Trademark Usage. Company, on the one hand, and Customer, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of an Service Order or this MSA without the other’s prior written approval. Without derogating from the foregoing, Company may use Customer’s name and logo on Company’s website and in other promotional materials such as customer lists, marketing activities and/or financial materials.

6.REPORTING

  • All numbers for purposes of billing and payment shall be based on Company’s reporting system and shall be deemed conclusive for such matters. Such reporting shall be conducted on a calendar monthly basis, in good faith and consistent with Company’s then current practices. Company shall provide Customer with access to Company’s online reporting system; however, in any event, the monthly reports made available by Company will prevail.

7.PAYMENT

  • 7.1.Credit Line. Company has the sole discretion to perform an application procedure and examination of a credit line to Customer (the “Credit Line“), during which Customer shall provide Company with all documents and information required by Company in order to duly perform such examination. Company may review and revise the Credit Line from time to time.
  • 7.2.Payments. Customer shall pay Company the fees described in the applicable Service Order and pursuant to the payment terms, payment model, Service Plan and cycle specified therein (collectively, the “Fees”). Unless otherwise stated in a Service Order, amounts paid and payable are non-refundable, non-cancellable, and without right of setoff. If any campaign spending occurs beyond the term of the applicable Service Order, Company’s Fees will continue to be calculated in accordance with the applicable Service Order, including this MSA, and such Fees and the campaign amounts will be due and payable by Customer. All other terms and conditions of any Service Order, including this MSA, will also continue to apply as long as campaigns continue to run through the Service, regardless of termination or end date, unless and until
  • any such Service Order is superseded by a new Service Order. Customer is fully and solely responsible for the payment of the Fees. Payments will be made in the currency stated in the Service Order, by electronic funds transfer, pursuant to Company’s instructions. For any overdue payments, or in case Customer has exceeded the Credit Line extended to Customer by Company, Company reserves the right, in addition to its other remedies, to suspend or disable performance of the Service and Customer’s access to the Service, or to only provide access on a read-only basis to the applicable Service Plan until Customer pays all overdue payments. Upon all past due amounts Company may charge interest on a daily basis at a rate equal to the lesser of (i) 1.5% per month or (ii) the maximum rate allowed by law. Customer also agrees to pay all reasonable attorneys’ fees and/or collection costs incurred by Company in collecting any past due amounts from Customer. All amounts payable hereunder are exclusive of any value added tax (VAT), use or sales taxes or similar taxes. Except for taxes on Company’s income, Customer agrees to pay all applicable taxes or charges imposed by any government entity applicable to the Service. In the event that Company owes to Customer/Agency any amount under any other agreement that the parties may have entered into with each other, Company shall have the right to offset such an amount against any money owed by Customer/Agency to Company under this MSA and the applicable Service Order.
  • 7.3.Agency Payments. Without derogating from anything to the contrary herein (including, without limitation, Agency’s payment obligations), Agency and each Customer will be jointly and severally liable for all payment obligations hereunder, and each of Agency and/or Customer hereby waives any right under any law or regulation that may require Company to proceed against Agency, Customer or any third party which may also be liable to Company prior to proceeding against Agency, Customer or such third party.

8.TERMINATION

  • 8.1.Termination for Cause. Either Company or Customer may terminate a Service Order effective upon written notice to the other party if such other party is in breach of any of its material obligations hereunder and fails to cure that breach within 5 business days after receipt of written notice from the non-breaching party specifying the breach; additionally, if Customer breaches any of the Policies and, following receipt of Company’s written notice thereof, does not cure such breach within 3 business days, then, Company may terminate the Service Order and/or Ad placements associated with such breach effective upon written notice to the other party.
  • 8.2.Effect of Termination. Upon expiration of the term of the Service Order, or on the effective date of termination thereof in accordance with Section 8.2, Customer shall immediately cease all access to, and use of, the Service, and all rights and licenses granted to Customer hereunder shall immediately terminate. For the removal of doubt, termination of the MSA and the applicable Service Order for any reason shall not affect or derogate from any rights, remedies, obligations, and liabilities that accrued as of the effective date of termination (such as Customer’s payment obligations hereunder, including any Fees incurred after the notice of termination, but prior to the date on which termination takes effect).
  • 8.3.Survival. Sections 5,6,7,8,9,10,11,12, 13 and 14 to this MSA shall survive any termination of an Agreement, as shall any provision that ought by its nature to survive.

9.REPRESENTATIONS

  • 9.1.Customer represents and warrants that: (a) it has the full corporate right, power, and authority to enter into this MSA and the applicable Service Order and to perform the acts required of it hereunder; (b) the execution of Service Order by it, and the performance of its obligations and duties hereunder, do not and will not breach any agreement to which it is a party or by which it is otherwise bound; (c) it possesses all consents, licenses, and other rights necessary to: (i) advertise, market, promote and offer the products and/or services displayed on the Ads and Advertising Materials; and (ii) grant Company the licenses included under this MSA; and (d) it complies with all applicable laws and regulations including, without limitation, data and privacy laws.
  • 9.2.Customer further represents and warrants that all Ads and Advertising Materials and any content, products, or services offered, distributed, marketed, or made available thereto, and any data processing in
  • connection therewith: (a) comply with and do not violate any applicable law, regulation, or ordinance (including, without limitation, personal data and privacy laws); (b) do not infringe on or violate any copyright, patent, trademark, trade secret, or other intellectual property right of any third party, and Customer is solely responsible for securing, maintaining, and paying for all applicable intellectual property rights and licenses in connection with such intellectual property rights; (c) do not breach any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy; (d) do not result in any consumer fraud, product liability, tort, breach of contract, injury, damage, or harm of any kind to any person or entity; (e) do not contain material or information that is related to any Prohibited Activity; (f) are not false or misleading; and (g) are free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancelbots, or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. Without derogating from the above, Customer represents and warrants that it is and shall be in compliance with the Policies of the Service.
  • 9.3.Customer further represents and warrants that all Ads and Advertising Materials, and any content, products, or services offered, distributed, marketed, or made available thereto, and any data processing in connection therewith: (a) do not disparage Company or Company Affiliates; and (b) do not state or imply that Company or Company Affiliates endorse such products. Customer understands that breach of this Section 9 will cause irreparable harm to Company.
  • 9.4.Customer represents and warrants that it will comply with the terms and conditions of any Third Party Platform, as applicable.
  • 9.5.Customer represents that it appoints Company as its agent to transact services related to this MSA. If required in order to substantiate Company’s agency relationship with Customer, Company may provide a copy of this MSA, including applicable Agreements to the Third Party Platforms with whom Company transacts on behalf of Customer; as an agent, Company is only liable to owners of the Third Party Platforms with whom Company transacts on behalf of Customer to the extent that Company has received funds from Customer for campaigns. If Company has not received funds from Customer for campaigns, Company is not liable to Third Party Platforms for those campaigns and owners of the Third Party Platforms may seek recourse directly from Customer for amounts owed for campaigns.
  • 9.6.Agency represents and warrants that it has the authority as Customer’s agent to bind Customer to this MSA and each Service Order, to transact on Customer’s behalf under such Service Order, and that all of Agency’s actions related to this MSA and each Service Order will be within the scope of such agency.

10.INDEMNIFICATION

  • Customer and/or Agency, as the case may be, shall indemnify and hold Company, the Company Affiliates, and their respective affiliates, officers, directors, agents, and employees harmless from and against any and all expenses and losses of any kind (including reasonable attorneys’ fees and costs) incurred by them in connection with any claim of any kind in relation to: (a) any Ads and/or Advertising Material, including any content, products, or services offered, distributed, marketed, or made available thereto, including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, or false or deceptive advertising or sales practices; or (b) any breach of any Customer and/or Agency (as the case may be) obligation, representation or warranty hereunder. Customer and/or Agency (as the case may be) will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on Company without Company’s prior written consent.

11.DISCLAIMERS; LIMITATION OF LIABILITY

  • 11.1.ANY SERVICES (INCLUDING THE SERVICE) PROVIDED BY COMPANY HEREUNDER ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREON (INCLUDING, WITHOUT LIMITATION, THIRD PARTY PLATFORMS AND/OR ANY OTHER THIRD PARTY
  • CONTENT). COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED CONDITIONS AND WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR A PARTICULAR PURPOSE, AND ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT THE SERVICE AND/OR THE THIRD PARTY PLATFORMS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR FREE OF ERRORS, VIRUSES OR INTERRUPTIONS. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF ANY SERVICE AND THE THIRD PARTY PLATFORMS IS ENTIRELY AT CUSTOMER’S SOLE RISK, AND COMPANY PROVIDES NO COMMITMENT OR GUARANTEES AS TO THE SUCCESS OF ANY CAMPAIGNS.
  • 11.2.IN NO EVENT SHALL COMPANY, COMPANY AFFILIATES, OR THEIR RESPECTIVE AGENTS, OFFICERS, OR SUPPLIERS BE LIABLE, UNDER OR OTHERWISE IN CONNECTION WITH THIS MSA AND/OR ANY SPECIFIC SERVICE ORDER UNDER THIS MSA, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, FOR LOST BUSINESS, LOST PROFITS, LOST ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS, FOR ANY LOSS OF (OR DAMAGE TO) REPUTATION OR GOODWILL, AND/OR FOR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
  • 11.3.THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH THIS MSA AND/OR ANY SPECIFIC SERVICE ORDER UNDER THIS MSA, AND/OR FOR ANY RESPONSIBILITY OR LIABILITY CREATED BY THE LAWS OF CUSTOMER’S STATE/JURISDICTION, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER
  • THIS MSA AND/OR ANY SPECIFIC SERVICE ORDER UNDER THIS MSA IN THE SIX
  • (6) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
  • 11.4.THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY SHALL APPLY: (A) EVEN IF COMPANY HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF DAMAGES OR LOSSES; (B) EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), AND STATUTORY LIABILITY.

12.NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, COMPLIANCE WITH LAWS

  • 12.1.Confidentiality. Each party will treat as confidential all Confidential Information (as defined below) of the other party, will not use such Confidential Information except as set forth herein, and will use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties will use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, in order to prevent the disclosure of Confidential Information disclosed to it by the other party under this MSA, but in no event will it use less than reasonable degree of care. Each party will promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
  • 12.2.Confidential Information. Notwithstanding the above, neither party will have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (a) was publicly known at the time it was disclosed or has become generally publicly known through no fault of the receiving party; (b) was legally known to the receiving party, without restriction, at the time of disclosure;
  • (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of Confidential Information; (e) became known to the receiving party,
  • without restriction, from a source other than the disclosing party, without breach of the terms hereof by the receiving party and otherwise not in violation of the disclosing party’s rights; (f) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in these terms; or (g) is disclosed pursuant to the requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party will provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
  • 12.3.For the purposes of this MSA, the term “Confidential Information” shall mean: any information disclosed by one party to the other pursuant to this MSA and any Service Order. Confidential Information may also include oral information disclosed by one party to the other pursuant to this MSA and any Service Order. Notwithstanding any failure to so identify disclosed information as Confidential Information, (a) this MSA, any Service Order, information pertaining to either party’s technology including without limitation, either party’s products and services, the appearance, content and flow of either party’s user interface and all other materials relating to either party’s customers, products, and business which either party makes available to the other hereunder, will be deemed to be Confidential Information; and (b) any information disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential, including information viewed or learned by a party during a visit to the other party’s facilities, will be deemed Confidential Information. For the removal of doubt, any pricing payment terms under any Service Order shall be deemed Confidential Information of Company.
  • 12.4.Warranty. As a condition of Customer’s use of the Service, Customer represents and warrants that it has received the express consent from Customer’s users to collect, use and share user data with Company and any other applicable consent required by applicable law in connection with Company’s use of such data.
  • 12.5.Restrictions. Customer shall not use any data made available to Customer hereunder (i) to create or add to user profiles, (ii) to target segments that identify end users, (iii) to identify, permit identification of, and otherwise attribute or be attributable to an individual end user, Company and/or the Third Party Platform, (iv) to target across other advertising platforms, exchanges or inventory sources, or (v) in contradiction to any applicable law and/or regulation.
  • 12.6.Feedback. Customer agrees and acknowledges that Company may collect and use comments, feedback, suggestions and other information, including, but not limited to, technical information made available through Customer’s use of the Service and/or otherwise provided by Customer, and that Company may use this information to improve, develop and otherwise provide applications, services and technologies
  • 12.7.Compliance with Law. Customer and Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under this MSA.

13.PRIVACY

  • 13.1.Consents; Privacy Laws. Customer hereby warrants and represents that it will (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, and (iii) comply at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), California Consumer Privacy Act ((“CCPA”)) (the “Privacy Laws”), for allowing Company to use and process the data in accordance with this MSA (including, without limitation, the provision of such data to Company (or access thereto) and the transfer of such data by Company to its Affiliates, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Service and the performance of the applicable Service Order, including this MSA. Without derogating from any other obligation or undertaking of Customer, Customer will comply with the Privacy Laws and/or any provision of the Data Processing Agreement available at: https://paragone.ai/dpa/ (“DPA”) which is an integral part of this MSA.
  • 13.2.Indemnity. In the event Customer fails to comply with any Privacy Laws and/or any provision of the DPA , then: (a) to the maximum extent permitted by law, Customer shall be solely and fully responsible and liable for any such breach, violation, infringement of the foregoing by Company and Company’s Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents); and (b) in the event of any claim of any kind related to any such breach, violation or infringement of the foregoing,
  • Customer shall defend, hold harmless and indemnify Company and Company’s Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees.

14.MISCELLANEOUS

  • 14.1.Force Majeure. Neither party shall be liable for, or be considered in breach of this MSA, or any Service Order on account of any delay or failure to perform as required by this MSA, or any Service Order (excluding payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control, including but not limited to acts of God, acts of government, strikes, or war, and which such party is unable to overcome by the exercise of reasonable diligence.
  • 14.2.Assignment. Customer may not resell, assign, or transfer any of Customer’s rights or obligations hereunder, without Company’s prior written approval (and any unauthorized resale, assignment, or transfer will be null and void). All terms and conditions in this MSA and each Service Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
  • 14.3.Entire MSA. this MSA, and any Service Order constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter hereof. This MSA, and any Service Order may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
  • 14.4.Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of a Service Order and this MSA, the terms of the Service Order will prevail. The laws of the State of New York and applicable U.S. federal laws, excluding any conflict of law rules, shall govern this MSA. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State located in New York County, New York and the Federal Courts of the Southern District of New York. Each of the parties consents to the jurisdiction and venue of any such court and waives any argument that any such court does not have jurisdiction over such party or such dispute or that venue in any such forum is not appropriate or convenient. Company reserves the right, at its discretion, to modify this MSA at any time. Such modification(s) will be effective 10 days following posting of the modified MSA on Company’s online portal, and Customer’s use of any part of the Service thereafter means that Customer accepts those modifications. Company therefore encourages Customer to check regularly to see the most current MSA.
  • 14.5.Severability. If any provision of this MSA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this MSA shall remain in full force and effect; and
  • (b) the parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this MSA and any Service Order hereunder shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision..
  • 14.6.Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically by email or by fax (in each with confirmation of successful transmission). All notices to Company and Customer will be sent to the contact and address as set forth in the applicable Service Order.
  • 14.7.Headings. Section or paragraph headings used in this MSA is for reference purposes only and should not be used in the interpretation hereof.
  • 14.8.Independent Contractors. The parties to this MSA are independent contractors and this MSA and these terms will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent
  • 14.9.Waiver. The failure of either party to enforce at any time any of the provisions of this MSA will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each such provision thereafter. The express waiver by either party of any provision of this MSA will not constitute a waiver of any future obligation to comply with such provision.
  • 14.10.Public Company. Customer undertakes that as Company is, or is being held by a publicly traded company, Customer will not, at any time, issue any press release and/or any public announcement relating to Company and/or Company Affiliates, this MSA (including the details of any Service Order) and/or the fact that the parties have engaged under a service Order, without the prior written approval of Company. Customer further acknowledges and agrees that Company and/or Company Affiliates may be obliged, as part of certain disclosure rules, to disclose the existence of an engagement under this MSA and any Service Order hereunder and its terms and conditions, including this MSA. Customer hereby waives any claim of any sort against Company and/or Company Affiliate for any such disclosure. In addition, Customer hereby acknowledges that it is aware, and it will advise its employees and consultants, that as Company is or is being held by a publicly traded company, the United States and Israeli securities laws prohibit any person who has received material, non-public information concerning Company and/or Company Affiliates from purchasing or selling securities of any of them, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Customer is aware of Company’s Code of Business and agrees that the Customer, its employees and consultants will act in accordance therewith at all times during the term of this MSA.

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