This Services Agreement (including the AdTouch Platform License and Services Agreement, collectively the “Agreement”) is between ADGENT DIGITAL Inc., a Delaware corporation with offices at 540 University Ave, Suite 300 Palo Alto, CA 94301 (“AdGent”) and the company listed in AdTouch Platform License and Services Agreement (“Publisher”). Each of AdGent and Publisher may be referred to herein individually as a “Party” or collectively as the “Parties”:
IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
AdGent offers services that create and manage mobile advertising campaigns including HTML5 ad units (“Advertisements” or “Ads” or “Campaigns”) to be displayed on Publisher websites and applications (such websites and applications, “Publisher Sites”) that are accessed on tablets and other mobile devices. These services offered by AdGent are collectively “AdTouch Services” (defined below).
ACCESS TO SERVICES; LICENSES
Access to Services and Licenses. Subject to the terms and conditions of this Agreement, AdGent hereby grants Publisher a non-exclusive right to access and use the commercially available suite of programs, components, functions, screen designs and report formats available as a service over the Internet as provided by AdGent to Publisher (the “AdTouch Platform”).
License Restrictions. The license set forth in Section 1.1 is granted subject to the following restrictions: (a) the AdTouch Platform, and the services identified (“AdTouch Services”) shall be used or accessed only by individual persons authorized by Publisher to access the AdTouch Platform solely using a user identifier and password provided to Publisher by AdGent (“Authorized Users”); and (b) except as expressly provided hereunder, Publisher shall not use the AdTouch Platform or AdTouch Services to process data on behalf of third parties.
Reservation of Rights. Subject only to the rights expressly granted to Publisher under this Agreement, all rights, title and interest in and to the AdTouch Platform and AdTouch Services shall remain with and belong exclusively to AdGent.
USE OF THE ADTOUCH SERVICES
Publisher Responsibilities. As between Publisher and AdGent, Publisher shall be responsible for agreements with any third party engaged in creating, placing or utilizing any Advertisements and, including, without limitation, direct advertisers, agencies, ad networks, ad exchanges, and ad servers (“Advertisers”).
AdGent Responsibilities. AdGent will provide the AdTouch Services and AdTouch Platform for Publisher’s use during the term of this Agreement. As soon as AdGent verifies that Publisher sites are serving AdTouch Ads, AdGent shall designate Publisher Sites as “AdTouch Enabled’ and provide the ‘AdTouch Enabled’ icon for display on the Publisher Sites.
Use Guidelines. Publisher shall use the AdTouch Services and AdTouch Platform solely for its business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the AdTouch Services or AdTouch Platform available to any third party, other than as expressly permitted by this Agreement; (b) interfere with or disrupt the integrity or performance of the AdTouch Services or AdTouch Platform or the data contained therein; or (c) attempt to gain unauthorized access to the AdTouch Services or AdTouch Platform or its related systems or networks or (d) Publisher will not, and Publisher will not authorize any third party to, modify, reverse engineer, disassemble, reconstruct, decompile, copy or create derivative works of the AdGent Digital Platform or any aspect or portion thereof including look and feel, nor alter or remove any identification, trademark, copyright, or other notice from the AdGent Digital Platform. Publisher will not, directly or indirectly, introduce viruses, spyware or other malicious code into the AdTouch Platform. AdGent reserves the right to use technical means to verify that Publisher’s use of the AdTouch Platform is in compliance with the terms of this Agreement.
Data Publisher shall have the sole and exclusive right to use all data derived from Publisher’s Campaigns, for any purpose related to Publisher’s business subject to any applicable laws and regulations restricting such use; and provided further that Publisher grants AdGent a license to use and disclose data derived from Publisher’s use of the AdTouch Platform solely (i) as part of its business operations, to disclose aggregate statistics about the AdTouch Platform in a manner that prevents individual identification of Publisher or Publisher’s information; (ii) to the extent necessary to (a) perform its obligations under this Agreement; or (b) operate, manage, test, maintain and enhance the AdTouch Platform; (iii) if required by court order, law or governmental agency; and/or (iv) as otherwise expressly permitted by Publisher.
FEES; PAYMENT TERMS
Fees; Payment Terms. Publisher shall pay the fees for Publisher’s use of the AdTouch Platform and AdTouch Services set forth in the AdTouch Platform License and Services Agreement. All payments for fees described shall be made by Publisher to AdGent within 30 days after receipt by Publisher of an invoice from AdGent.
Net of Taxes. All amounts payable by Publisher to AdGent hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Publisher shall be solely responsible for payment of any Taxes, except for those taxes based on the income of AdGent. Publisher will not withhold any Taxes from any amounts due AdGent.
As used herein, “Confidential Information” means, any and all information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”). However, information and data will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Parties shall use reasonable measures to protect the secrecy of, avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information. Confidential Information may be disclosed to only (a) such employees and agents of the Parties as may have a need to know such information in the course of their duties; (b) legal or financial advisors of the Parties on a need to know basis; or (c) any competent authorities following a judicial order to do so.
REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
Representations and Warranties. AdGent represents and warrants to Publisher that AdGent shall provide the AdTouch Services in a professional and workmanlike manner in accordance with applicable industry standards. Each Party represents and warrants to the other Party that such Party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder.
Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADGENT DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. PUBLISHER ACKNOWLEDGES THAT ADGENT DOES NOT WARRANT THAT THE ADTOUCH SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. WITHOUT LIMITING ANY OF THE FOREGOING, ADGENT MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED OR PLACEMENT OF ADVERTISEMENTS FROM USING THE ADTOUCH SERVICES HEREUNDER.
Indemnification by AdGent. In the event of a claim against Publisher of the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of the AdTouch Platform by Publisher as permitted hereunder, AdGent shall, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by AdGent for such defense, provided that (i) Publisher shall promptly notify AdGent of such claim, (ii) AdGent shall have the sole and exclusive authority to defend and/or settle any such claim and (iii) Publisher reasonably cooperates with AdGent in connection therewith. If the use of the AdTouch Platform by Publisher has become, or in AdGent’s opinion is likely to become, the subject of any claim of infringement, AdGent may at its option and expense (a) procure for Publisher the right to continue using the AdTouch Platform as set forth hereunder; (b) replace or modify the AdTouch Platform to make it non-infringing so long as the AdTouch Platform has at least equivalent functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. AdGent shall have no liability or obligation under this Section 6.1 with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Publisher; (y) modification of the AdTouch Platform by any party other than AdGent without AdGent’s express consent; or (z) the combination, operation or use of the AdTouch Platform with other applications, portions of applications, product(s), data or services where the AdTouch Platform would not by itself be infringing.
Indemnification by Publisher. Publisher shall, at its expense, defend AdGent against any and all claims directly or indirectly brought against AdGent by any third party arising from (i) any use of any AdTouch Platform by Publisher, its authorized representatives or by any entity or individual using the user identifier and password provided to Publisher by AdGent, which use is in violation of the terms of this Agreement or in a manner not prescribed by AdGent; and/or (ii) any Ad and/or Ad campaign delivered to any Publisher Site. Publisher shall pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by AdGent for such defense; provided that: (x) AdGent shall promptly notify Publisher of such claim, (y) Publisher shall have the sole and exclusive authority to defend and/or settle any such claim and (z) AdGent reasonably cooperates with Publisher in connection therewith.
LIMITATION OF LIABILITY
LIMITATIONS ON REMEDY. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE PRICE ADGENT HAS INVOICED PUBLISHER UNDER THIS AGREEMENT FOR THE MOST RECENTLY INVOICED THREE (3) MONTHS AT THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. NOTWITHSTANDING ANY OF THE FOREGOING, ADGENT SHALL NOT HAVE ANY LIABILITY ARISING FROM ANY AGREEMENTS BETWEEN PUBLISHER AND ANY AD NETWORK OR FROM ANY ADVERTISEMENTS.
License Term. Unless earlier terminated as described below, the term of the Agreement shall commence on the Effective Date and continue for a period as defined in AdTouch Platform License and Services Agreement (the “Initial Term”). Thereafter, the term of the Licenses may be extended for successive renewal periods of one year (each, a “Renewal Term” and, together with the Initial Term, the “Term”). Either Party may terminate the Agreement as of the end of the Initial Term or any Renewal Term by written notice to the other Party given not later than sixty (60) days prior to the end of the relevant Term.
Termination. In addition to any rights of the Parties to terminate this Agreement as specifically provided in any other section of this Agreement, each Party may terminate this Agreement upon written notice in the event the other commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
Obligations on Termination. Upon termination of this Agreement all rights granted hereunder and all obligations of AdGent to provide AdTouch Services shall immediately terminate and the Parties shall return any Confidential Information of the other Party in its possession or control to the other Party. Termination of this Agreement or expiration of the Term shall not relieve Publisher from paying all fees accruing prior to termination. Sections 2.1, 3, 4, 5, 7, 8.3 and 9 shall survive the termination or expiration of this Agreement for any reason whatsoever.
Force Majeure. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”); provided that financial inability in and of itself shall not be a Force Majeure Event.
Compliance with Laws. Without limiting the generality of the foregoing, Publisher shall not transfer, either directly or indirectly, the AdTouch Platform, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations.
No Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party, except either Party may assign this Agreement, without the prior written consent of the non-assigning Party, to a corporation or other business entity succeeding to all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such corporation or other business entity assumes, in a writing delivered to the non-assigning Party, all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.
Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of California without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of California and of the United States of America located in the State of California (the “California Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the California Courts and agrees not to plead or claim in any California Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the California Courts.
Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses first set forth above or such other addresses designated pursuant to this Section 9.7.
Publicity. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party.
Entire Agreement. This Agreement, including the AdTouch Platform License and Services Agreement hereto constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. In the event of any conflict between this Agreement and AdTouch Platform License and Services Agreement, the following order of precedence shall apply: (i) this Agreement, and (ii) AdTouch Platform License and Services Agreement (in chronological order, with the newest taking precedence).
End of Terms of Service