AdPoint Video Client Master Services Agreement and Terms of Service



  1. Defined Terms

    a. “Action” means any type of preagreed or predefined activity or result that is sought by an Advertiser that may by way of example, include impressions, click-throughs, the sale of products or services, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, or any other kind of action, transaction or activity that can be tracked and reported upon.

    b. “Advertiser” means any person or entity that owns or operates a Website and/or other business that can acquire customers or other types of users by way of the Internet.

    c. A “corporate affiliate” of a person or entity is any other person or entity that, directly or indirectly, controls such person or entity, is controlled by such person or entity, or is under common control of such person or entity.

    d. “Content” means an Advertiser’s trademarks, trade names, trade dress, Internet domain names, Websites, logos, creative, copy and other content provided by that Advertiser to AdPoint Video in connection with the Services.

    e. “Distribution Partner” means any Website that Company directly engages through its use of the Services (including Publishers) or that AdPoint Video in performing the Services to Company engages on Company’s behalf to promote Company’s products and services and/or distribute or display Company’s Content.

    f. An “Engagement” means an agreement or arrangement between an Advertiser and a Distribution Partner that can be performed on or in relation to the Internet.

    g. “AdPoint Video Technology” means any software application proprietary to AdPoint Video that it makes available to Company for installation on Company’s servers or on a Company Website to enable Company’s use of the Services in accordance with this Agreement and each relevant Order Form, together with new versions, enhancements and upgrades thereof made available by AdPoint Video.

    h. “Prohibited Activity” means any activity that involves, facilitates, advocates or promotes one or more of the following: (i) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, national origin or disability; (ii) libelous, defamatory, obscene, pornographic, sexually explicit or abusive activities; (iii) gambling or illegal substances; (iv) sedition or illegal activities; (v) false or misleading advertising; or (v) a conflict or violation of any law or any intellectual property or other rights of any person or entity.

    i. “Publisher” refers to a Website that participates in AdPoint Video’s ad network and, through such participation makes itself available to be recruited or to enter into direct Engagements with Advertisers to display or distribute advertising content provided by Advertisers for compensation.

    j. “Services” means one or more of the online advertising services offered by AdPoint Video pursuant to an Order Form as defined in Section 2(a), including its affiliate marketing, lead generation, and advertising network services.

    k. “Term” shall have the meaning set forth in Section 11(a).

    l. “Transaction Data” refers to data and information about Actions generated through Company’s use of any of the Services.

    m. “Web” or “Internet” or “online” means the global computer network currently referred to as the Internet, including the World Wide Web, and any and all successor networks, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.

    n. “Website” or “Web site” or “Web Site” means, as the context requires, either (i) one or more Web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the Web or works on or in relation to the Web, or (ii) a person or entity owning or operating any such Website, or (iii) both.

    o. The words “include,” “includes” and “including” will be deemed to be followed by the phrase “without limitation” or “but not limited to.”

  2. AdPoint Video Services

    a. Services. This Agreement states the terms and conditions under which AdPoint Video will provide the Services ordered from time to time by Company pursuant to one or more order forms or insertion orders (each, an “Order Form”). AdPoint Video will not be required to provide any Service until an Order Form for that Service is accepted and signed by each party.

    b. Performance. Any technical assistance and customer support services to be provided under any Order Form will be performed by AdPoint Video personnel in a professional and workmanlike manner. Notwithstanding the preceding, AdPoint Video does not guarantee or warrant that Company will achieve any level of Web user activity, sales revenues or other results from using any services provided hereunder.

  3. Payment

    a. Obligations. Company will pay or cause to have paid to AdPoint Video and all Distribution Partners to be compensated by Company when due, any and all applicable fees and charges owing under each applicable Order Form.

    b. Payment Methods. AdPoint Video may offer one or more payment options to you, which may include recurring automatic payments. You represent and warrant that you are authorized to use the designated card or payment method provided for the payment option selected. YOU AUTHORIZE ADPOINT VIDEO, OR ITS DESIGNATED PAYMENT PROCESSOR, TO CHARGE YOUR SUBSCRIPTION FEES AUTOMATICALLY (INCLUDING ANY APPLICABLE ONE-TIME FEES, RECURRING PAYMENTS, OVERAGE AND USAGE FEES) PLUS ANY APPLICABLE TAXES OR OTHER AMOUNTS DUE IN CONNECTION WITH THE SERVICES TO THAT DESIGNATED CARD OR OTHER PAYMENT METHOD, AND TO PROCESS AND STORE SUCH PAYMENT INFORMATION. It is your responsibility to update your credit card information when it expires. If AdPoint Video, or its designated payment processor, is unable to process your payment for any reason, AdPoint Video may (i) immediately suspend or terminate the Services provided to you; (ii) seek collection of the outstanding amount owed; and/or (iii) seek legal action against you for breach of this Agreement.

    c. Automatic Payments. You acknowledge that for recurring automatic payments, the timing and amount of each charge may vary depending on changes in applicable taxes or increases in Subscription Fees, and you consent to such variable charges without advance notice to you except as required by law. You may revoke your authorization for future recurring automatic payments at any time by modifying your payment options in your AdPoint Video account. Termination of the Services will become effective as set forth in Section 11 below, and upon termination, you will no longer have the access to the Services. You authorize AdPoint Video, or its designated payment processor, to charge your specified credit card or other payment method in the amount of any outstanding balance due to AdPoint Video upon the termination of the Services.

  4. Account and Account Security

    To subscribe to the Services, you must have a registered account with AdPoint Video. You agree to maintain accurate and complete information in your AdPoint Video account at all times, including but not limited to current billing information such as your billing address, a valid credit card number or other account number, and the expiration date. You acknowledge that you are solely responsible for maintaining the security of, and restricting access to, your account, user name and password.

  5. Intellectual Property

    a. Licenses. Company hereby grants to AdPoint Video during the term of this agreement a limited, nonexclusive, worldwide right and license to use and sublicense Company’s Content to the extent reasonably necessary for AdPoint Video to provide the Services, including making such content available to Distribution Partners and promoting Company’s use of the Services. AdPoint Video hereby grants to Company during the term of this Agreement a nonexclusive, nontransferable license (without any right to sublicense except as expressly provided below) to use the AdPoint Video Technology and other AdPoint Video intellectual property made available to Company by AdPoint Video solely as necessary for Company to utilize Services ordered pursuant to any Order Form and for no other purpose.

    b. Ownership; No Contest. Each party and its suppliers will own its or their respective intellectual property, and, except as expressly granted herein, nothing herein will grant to either party any rights or licenses in or to the other party’s Intellectual Property. Neither party shall assert ownership of or any claim to or interest in any Intellectual Property of the other party or any goodwill associated therewith, except for any licenses or rights expressly granted hereunder or under any Order Form during its term. To the extent permitted by applicable law, each party agrees that it shall not attack, challenge or file any application with respect to any such Intellectual Property of the other party.

    c. Use of Marketing Agencies. Company may, upon prior written notice to AdPoint Video, delegate and sublicense its right to use AdPoint Video’s tools, services and resources to any agency, firm, consultant or other third party solely for the purpose of permitting such third party to manage online marketing campaigns on behalf of Company, provided that (i) such third party agrees in writing to comply with this Agreement and any relevant Order Form(s), which writing shall name AdPoint Video as a third party beneficiary, (ii) Company is responsible and liable for such third party’s compliance with any and all obligations hereunder and in any applicable Order Forms, and (iii) AdPoint Video may, as a condition to permitting such third party to use AdPoint Video tools, services and resources, require such third party to execute a confidentiality or other agreement reasonably acceptable to AdPoint Video.

    d. Restrictions. Company agrees not to (i) make unauthorized modifications, reverse engineer, disassemble, decompile, attempt to derive source code of, or hack any AdPoint Video Technology; or (ii) hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code any AdPoint Video servers, computer equipment, software or other technological resources.

  6. Confidentiality

    a. Definition. A party’s “Confidential Information” refers to such party’s confidential and proprietary information or ideas including such party’s confidential or proprietary intellectual property assets. The term “Confidential Information” also includes: the terms and conditions of this Agreement and any and all Order Forms, and (ii) any confidential information of any third party that the disclosing party is only permitted to provide to the receiving party subject to confidentiality obligations. The term “Confidential Information” will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party obtains from a source other than the disclosing party, provided that the disclosure to the receiving party by such source is not known to the receiving party to be a violation of a confidentiality obligation of such source to the disclosing party, and (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without use of the disclosing party’s trade secrets or confidential information, as shown by contemporaneous records.

    b. Non-Disclosure. Each party will keep the other party’s Confidential Information secure using at least the same degree of care that it uses to protect its own Confidential Information, but no less than reasonable care, and shall not disclose or use such other party’s Confidential Information except solely to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement. Further, each party may disclose the other party’s Confidential Information only to those of its employees, officers, directors, consultants, and advisers who need to know such information in order to perform their respective duties; provided that (i) each such person has a legal or contractual obligation to maintain the confidentiality of such information, and in the case of consultants, no such consultant is a competitor of, or corporate affiliate of a competitor of, the disclosing party.

    c. Exceptions. The confidentiality restrictions contained herein will not apply to disclosure by any party of the other party’s Confidential Information to the extent required by law or court order, provided that such party required to make such disclosure uses reasonable efforts to give the other party prompt written notice of such requirement, in advance if possible, in order to give such other party an opportunity to lawfully prevent or limit the scope of such disclosure.

  7. Data

    a. AdPoint Video. AdPoint Video may use and store any data and information that it collects and/or compiles in the course of providing the Services to the Company and/or to Distribution Partners. AdPoint Video may also use, transmit, distribute, and/or publish any aggregation of data and information received, collected and/or compiled through its provision of the Services, including as a part of reports, analyses, case studies, metrics, compilations, database services and/or other educational, training, marketing or similar materials, services or products to be used or made available by AdPoint Video, provided that in respect of Company’s data and information, AdPoint Video will not disclose the identity of Company.

    b. Company. During the Term and after any expiration or termination of the Term or any Service Term (as defined in the relevant Order Form), Company may, subject to the terms and conditions of this Agreement and any Order Form(s), use and store solely for its internal business purposes any and all data and information contained in any reports about Company’s use of the Services, provided that such rights of use and storage shall cover only such data and information in Company’s possession at the time of such expiration or termination.

  8. Privacy Policy

    Company will ensure that the Websites that Company promotes through its use of the Services will feature an easy-to-understand privacy policy that complies with law and is linked, at a minimum, conspicuously from such Website’s home page, with a link that contains the word “Privacy,” “Legal,” “Terms” or similar language. Such privacy policy shall contain disclosures about Company’s privacy practices and identify the collection and use of any information.

  9. Warranties; Limitations on Damages

    a. General Warranties. Each party hereby represents and warrants as of the Effective Date and as of the effective date of each of the Order Forms that such party has full corporate power and authority to enter into this Agreement and any such Order Forms executed by it and to perform its respective duties hereunder and thereunder.

    b. Company Warranties. Company warrants to AdPoint Video that (i) it will not use the Services to engage in or promote a Prohibited Activity, and (ii) any activity that violates any law, rule or regulation, and (iii) any activity that would require AdPoint Video to acquire any license, permit, consent, authorization, registration or approval from any governmental entity not generally applicable to AdPoint Video’s business or operations in order to provide or continue to provide Services to Company; and (ii) none of the Content furnished by Company to AdPoint Video violates or infringes the intellectual property rights of any third party.

    c. AdPoint Video Warranty. AdPoint Video warrants to Company that Company’s use of AdPoint Video Technology during the Term will not be held by any court to directly infringe any United States patent issued as of the Effective Date, copyright or trademark of any third party, provided that such warranty shall be unenforceable if Company (i) makes an unauthorized modification to the AdPoint Video Technology, (ii) fails to install and use modifications, enhancements or substitutions to the AdPoint Video Technology that have been made available by AdPoint Video, (iii) uses the AdPoint Video Technology for a purpose for which it was not intended, outside the scope of any relevant documentation or in violation of this Agreement, or (iv) Company combines the AdPoint Video Technology with other hardware, software, processes or material not provided by AdPoint Video.

  10. Indemnification; Limitation of Liability

    a. Company. Company agrees to indemnify, defend and hold AdPoint Video and its employees, officers, directors, shareholders, corporate affiliates, agents and suppliers harmless for any third party claims, proceedings, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of or relating to: (i) any breach by Company of any provision of this Agreement or any Order Form; (ii) the operation by Company of any Website or underlying business promoted through the Services; (iii) any offer made to Distribution Partners by Company or at the direction of Company through the Services; (iv) any alleged violation or infringement by Company of the intellectual property rights of a third party; (v) Company’s Engagements with any Distribution Partners; or (vi) any Prohibited Activity.

    b. AdPoint Video. AdPoint Video agrees to indemnify, defend and hold Company and its employees, officers, directors, shareholders, corporate affiliates, agents and suppliers harmless for any third party claims, proceeding, causes of action, liabilities, damages, losses, costs and expenses (including reasonably attorneys’ fees and disbursements) arising out of or relating to any breach by AdPoint Video of the warranty set forth in Section 9 above, provided that such indemnity shall not apply to the extent the alleged infringement results from the use of AdPoint Video Technology in conjunction with any other software or hardware not provided by AdPoint Video and provided further, Company cooperates fully in mitigating such alleged infringement after being notified thereof and installs and implements any modifications, enhancements or substitutions provided by AdPoint Video that would mitigate or avoid such infringement. If use of the AdPoint Video Technology is likely to be enjoined or held to be infringing, AdPoint Video will, in its sole discretion, either (i) obtain the right for Company to continue using the AdPoint Video Technology, (ii) modify or replace the same so as to eliminate the alleged infringement, or (iii) offer a substitute technology and/or methodology to accomplish the utility or functionality thereof. If AdPoint Video determines that none of these alternatives is reasonably available, either Company or AdPoint Video will have the right, upon written notice to the other, to terminate this Agreement. This Section finally and exclusively states all of Company’s rights against AdPoint Video in case of an infringement of any third party rights. AdPoint Video shall have no additional liabilities with regard to the infringement of any third party right.

    c. Procedure. The indemnification obligations in this Section 10 are conditioned on: (i) prompt written notice to the indemnifying party of any claim, action, or demand for which indemnity is claimed or which may give rise to an indemnity claim, provided that the failure by the indemnified party to provide timely notice of any claim, action or demand shall not affect or impair the obligations of the indemnifying party, except and only to the extent that the indemnifying party has been adversely affected by such failure or delay; (ii) the indemnifying party having the right to assume complete and sole control over the defense and any and all negotiations for any settlement or compromise thereof; and (iii) cooperation of the other party and its employees, officers, directors, consultants, advisers, and corporate affiliates in such defense. If the indemnifying party elects to assume control of the defense of any claim, the indemnified party shall, at its own expense, have the right to participate in the defense or consult its own counsel.

    d. Limitation on Liability. Neither party (including its respective contractors and suppliers) will be liable to the other (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) in connection with or resulting from this Agreement or any of the contemplated links, services, activities or relationships for any indirect, incidental, consequential, reliance, punitive or special damages, even if such party was aware that such damages could result. In no event shall AdPoint Video’s total liability for any or all of Company’s losses or injuries from acts or omissions by AdPoint Video under this Agreement, regardless of the nature of the legal or equitable right claimed to have been violated, exceed the amount of AdPoint Video fees paid by Company to AdPoint Video (exclusive of fees paid or payable to Distribution Partners) under the Order Form subject to the alleged breach during the one year period preceding the date of the alleged breach. The foregoing limitations on liability will not apply in the case of any indemnification obligations expressly set forth in this Agreement or in any Order Form. In no event shall AdPoint Video be liable to Company or any other person for any (i) acts or omissions of any Distribution Partner or (ii) for system downtime.

    e. Disclaimers. Except as expressly provided in Section 9, AdPoint Video (including its contractors and suppliers) hereby disclaims any and all warranties, express or implied, including any warranty as to accuracy, advertiserability, completeness, currentness, non-infringement, title, or fitness for a particular purpose of the Services or the AdPoint Video Technology.

    f. Entire Obligation. This Section 10 states AdPoint Video’s entire obligation to Company with respect to any breach of any of the warranties set forth in this Agreement or in any Order Form. Each party acknowledges that the provisions of each of the foregoing Sections are an essential element of the benefit of the bargain reflected in this Agreement.

  11. Term; Termination

    a. Term. The term of this Agreement will commence as of the Effective Date as recorded on the first Order Form and continue until the expiration of the last Order Form that may be in effect, unless earlier terminated in accordance with this Agreement (the “Term”).

    b. Termination Rights. Either party will have the right to terminate this Agreement and/or any or all Order Forms upon any material breach of this Agreement or any Order Form by the other party, which breach remains uncured for a period of 15 days following written notice thereof, provided that AdPoint Video may terminate this Agreement and/or any or all Order Forms upon a default in Company’s payment obligations to AdPoint Video or a Publisher if such default is not cured within five (5) business days following written notice thereof. In addition, either party may terminate this Agreement and/or any or all Order Forms in accordance with Section 10(b).

    c. Suspension Right. Upon determining in good faith that a material breach of this Agreement or any Order Form has occurred or at any time AdPoint Video determines in good faith that any act or omission by Company might have a material adverse effect on AdPoint Video’s business operations, AdPoint Video will have the immediate right to temporarily suspend Company’s access, use or benefit of any or all AdPoint Video-provided tools, services and/or other resources until the time when Company cures such alleged breach, such suspected or alleged breach is discovered to be nonexistent, or a termination event, as applicable.

    d. Effects of Expiration or Termination of this Agreement. In the event of an expiration or termination of this Agreement, in addition to any rights and/or obligations set forth in any and all Order Form(s), the parties agree that (i) any and all outstanding Order Forms shall be terminated effective thereupon; (ii) Company will pay any and all payment obligations owing under any Order Form or any of its AdPoint Video tracked Engagements to AdPoint Video and any and all Distribution Partners; (iii) Sections 3, 5(b), 6, 7, 10, and 11 and any provision of this Agreement or any Order Form which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement; and (iv) any rights or remedies of either party arising out of a breach or violation by the other party of any terms of this Agreement or any Order Form will survive any expiration or termination thereof.

  12. Branding and Trademarks

    a. Company. AdPoint Video shall have the right to use your brand, tradename, trademark or logo and to publicly disclose our relationship, and to include links to URLs in which you use the name of AdPoint Video or AdPoint Video and you grant to AdPoint Video a license to use and display your trademarks and any other rights or permission necessary to allow for such use.

    b. AdPoint Video. Subject to the terms and conditions of this Agreement, AdPoint Video hereby grants you a non-exclusive, non-transferable license to use and display the AdPoint Video trademark on your website in connection with your use of the Services.

  13. Miscellaneous

    a. Notices. Any legal notice from you to AdPoint Video must be in writing and delivered by certified mail, postage pre-paid and return receipt requested OR by nationally recognized overnight courier which provides a written proof of delivery, to the following address: AdPoint Video, Legal Department, 353 Third Avenue, Suite 130, New York, NY 10010. If AdPoint Video is obligated or wishes to give you legal notice of any kind, AdPoint Video may do so by use of any of the addresses you have given to AdPoint Video through our online account interface and/or Order Form, including postal mail or e-mail. If any such notice fails to reach you because you gave AdPoint Video inaccurate address information, AdPoint Video’s notice shall nonetheless be deemed to have been delivered to you.

    b. Changes to this Agreement. AdPoint Video reserves the right to amend or modify these Terms of Service, or any portion of hereof. The current version hereof can be accessed at www.AdPoint.Video/msa.

    c. Waiver; Severability. No waiver of any provision or breach of this Agreement (i) shall be effective unless made in writing, or (ii) shall operate as or be construed to be a continuing waiver of such provision or breach. Any failure by AdPoint Video to enforce any of its rights under this Agreement or any applicable laws shall not constitute a waiver of such right. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall not affect the other provisions hereof, and in any such occasion this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, and the invalid or non-enforceable provision of this Agreement shall automatically be construed as replaced with a valid and enforceable provision which most closely meets or approximates the intent and economic effect of the invalid or non-enforceable provision.

    d. Governing Law; Venue. This Agreement shall be governed by and interpreted under the laws of the State of New York, without respect to or application of its conflicts-of-laws provisions. The parties specifically disclaim application of (i) the United Nations Convention on the International Sale of Goods, and (ii) of Article 2 of the Uniform Commercial Code as codified. If any disputes or conflicts arise out of this Agreement, you expressly agree that the litigation will take place exclusively in the state or federal courts located in New York County, State of New York, United States of America, and you expressly agree that any such court has personal jurisdiction over you. You waive all defenses of lack of personal jurisdiction and forum non-conveniens.

    e. Entire Agreement; Assignment. This Agreement sets forth the entire understanding between you and AdPoint Video with respect to its subject matter, and supersedes any and all prior or contemporaneous proposals, communications, agreements, understandings, negotiations, and representations, whether written or oral, related thereto, which shall have no effect as of the date this Agreement becomes effective. You may not assign this Agreement, or any of Your rights or obligations under this Agreement (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without AdPoint Video’s express prior written permission to do so, and any attempt to assign in violation of the preceding shall constitute an incurable material breach of this Agreement and shall, at AdPoint Video’s option, render this Agreement null and void. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

    f. Relationship of the Parties. This Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between you and AdPoint Video. Neither you nor AdPoint Video shall be obligated by any agreement, representation or warranty made by the other.

    g. Other. AdPoint Video is relieved of any obligation to perform under this Agreement if we are unable to perform as a result of any reasons or conditions beyond our reasonable control. AdPoint Video may engage the services of subcontractors or agents to assist AdPoint Video in the performance of its obligations, and AdPoint Video will not be responsible for the acts and omissions of such subcontractors and agents.

  14. November 3, 2016