“Unmatched Solutions Data” means data that is owned or licensed by Unmatched Solutions, and made available through the Platform.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that:
- 1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
- 2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
- 3. is received from a third party without breach of any obligation owed to the Disclosing Party; or,
- 4. was independently developed by the Receiving Party without reference to the Confidential Information;
“Customer’s Data” means data that Customer provides to Unmatched Solutions that Customer owns or has acquired the right to use, and that is stored on the Platform.
“Media and Data Costs” means the cost of all media and data purchased by the Customer in a given period.
“Platform” means the platforms used by Unmatched Solutions for the purpose of buying advertising media across multiple exchanges and supply side platforms.
“PII” means personally identifiable information (that is, information that can be used to identify or locate a natural person, including without limitation, name, address, telephone number, e-mail address, and social security number). “PII” does not include a user’s IP address.
2. Prohibited Activities.
- advertise anything illegal, engage in any illegal, deceptive or fraudulent business practice, or take any other action that could result in claims, fees, fines, penalties or other liability to Unmatched Solutions or any of its affiliated companies;
- traffic any advertisements that are false, defamatory, harassing or obscene;
- spread, or facilitate the spread of, any viruses, worms or other malicious computer programs that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
- traffic any advertisements that infringe upon any party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- frame, or utilize framing techniques to enclose, any of Unmatched Solutions’ trademarks, logos or other proprietary information (such as images, text, page layouts and forms);
- scrape any ads that have been served using the Platform, or use any other automated means of data extraction to access, query or otherwise collect any information related to ads that have been served using the Platform;
- make any information derived from the Platform available to others as a form of market research or competitive intelligence; or,
- do anything that could disable, over-burden or impair Unmatched Solutions, or its partners’, servers, or the proper operation of the Platform.
3. Term & Termination.
- This agreement may be terminated by either party upon a material breach of this agreement by the other party; provided that the party claiming such breach shall give the other party written notice thereof setting forth the breach in reasonable detail, and the other party will have 30 days from the date of its receipt of such notice to cure any alleged breach. If the breaching party fails to cure such breach to the reasonable satisfaction of the non-breaching party, the non-breaching party will have the right to immediately terminate this agreement by providing the other party with written notice.
The amounts payable to Unmatched Solutions are exclusive of any sales, use, excise, value added, import, business, service, goods and services, consumption, withholding, or other applicable taxes, tariffs or duties (collectively referred to as “Taxes”). The Customer is solely responsible for payment of all Taxes, except for any taxes based solely on Unmatched Solutions’ net income. If the Customer is required to pay any Taxes, it shall do so without any reduction or offset in the amounts payable to Unmatched Solutions hereunder. If Unmatched Solutions has the legal obligation to pay or collect Taxes for which the Customer is responsible, the appropriate amount shall be invoiced to and paid by the Customer.
5. Customer’s Obligations.
- Customer will obtain, and hereby grants to Unmatched Solutions on a non-exclusive basis, all necessary rights and permissions for Customer’s use of the Platform, including without limitation, rights and permissions needed to authorize Unmatched Solutions to buy ad inventory on Customer’s behalf (and any third party on whose behalf Customer is acting), perform tracking and analytics, and to store and serve ads.
- The Customer shall purchase ad inventory only for Customer’s own use, or for the use of an advertiser (or an agent of an advertiser) with which Customer has a relationship. The Customer shall not resell, distribute or otherwise syndicate ad inventory to an indirect sales channel (e.g. an ad network, exchange or trading desk) without Unmatched Solutions’ prior written consent.
- In order to use the Platform, the Customer must provide certain information to Unmatched Solutions. Customer, and each employee and/or agent acting on its behalf, shall provide Unmatched Solutions with accurate and complete information, and shall promptly provide Unmatched Solutions with an update to such information, if any of it changes.
- The Customer shall:
comply with all applicable laws and regulations (including, but not limited to, laws, rules or regulations relating to advertising, privacy or the use of PII).
6. Rejection of Ads; Suspension of Campaigns.
Unmatched Solutions may reject, remove or refuse to serve, any advertisements that do not comply with Unmatched Solutions’ policies, or the policies of its various ad inventory partners.
Unmatched Solutions may immediately suspend any campaign if Unmatched Solutions reasonably determines that the Customer is not materially complying with this agreement, or the Customer is acting in a manner that could cause damage to Unmatched Solutions’ business or reputation, or otherwise reflect unfavorably upon Unmatched Solutions, its affiliates, or its ad inventory partners. Unmatched Solutions shall notify the Customer in writing, promptly following any such suspension taking effect.
7. Ad Inventory Partner Policies.
The Customer hereby acknowledges that use of the Platform, and Unmatched Solutions’ ability to provide the services offered through the Platform, is subject to the policies of its ad inventory partners, and that such policies may change over time and without notice. Changes to such policies may dramatically impact the Customer’s ability to purchase ad inventory.
8. Ad Tags.
Unmatched Solutions may, in its sole discretion, permit the Customer to utilize ad tags for the purposes of purchasing available ad inventory. Unmatched Solutions reserves the right to revoke the Customer’s ad tag access at any time. Unmatched Solutions shall promptly notify the Customer in such event.
As between Customer and Unmatched Solutions, unless otherwise expressly agreed, Customer will own and have all rights to Customer’s Data and Unmatched Solutions will own and have all rights to Unmatched Solutions Data.
Customer grants Unmatched Solutions the non-exclusive right to use Customer’s Data for purposes of managing Customer’s buying activities on the Platform
At the Customer’s request following termination of this agreement, Unmatched Solutions shall promptly delete any Customer Data.
The Customer shall not repurpose or use Unmatched Solutions Data outside the Platform.
Notwithstanding anything to the contrary set forth herein, Unmatched Solutions has the right to use all data or data derived from the transactions hereunder, regardless of who owns such data:
- as part of its internal business operations;
- as part of aggregated data sets which are compiled in a manner that prevents individual identification of users;
- to the extent necessary to perform its obligations under this agreement;
- to operate manage, test, maintain and enhance its platform and systems;
- to protect its platform and systems from what, in Unmatched Solutions’ reasonable determination, is a threat to its systems, platform or operations, and;
- to comply with any law or court order.
10. Proprietary Rights.
Unmatched Solutions does not grant the Customer any express or implied right or license (such as any right or license under any patents, trademarks, copyrights, or other proprietary or intellectual property rights), other than the rights expressly set forth in this agreement. Unmatched Solutions expressly reserves all other rights.
Unmatched Solutions retains all rights in and to the Platform, including any enhancements.
As between the parties, Unmatched Solutions owns and retains all right, title and interest in and to the Platform, the Unmatched Solutions Data, all other software, databases and other aspects and technologies related to the Platform, any enhancements, modifications or derivative works thereto, any materials made accessible to Customer by Unmatched Solutions through the Platform and all intellectual property and proprietary rights in and to all of the foregoing.
Both the Customer and Unmatched Solutions reserve any rights not expressly granted to the other herein and disclaim all implied licenses, including, without limitation, implied licenses to trademarks, copyrights, trade secrets and patents.
Unmatched Solutions’ measurements will be used for the calculation of any payments owing.
12. NO REPRESENTATIONS OR WARRANTIES.
EXCEPT AS OTHERWISE SET OUT HEREIN, UNMATCHED SOLUTIONS PROVIDES IT’S SERVICES TO THE CUSTOMER ON AN ‘AS IS‘ AND ‘ AS AVAILABLE‘ BASIS. EXCEPT AS OTHERWISE SET OUT HEREIN, UNMATCHED SOLUTIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE PLATFORM, OR ANY INFORMATION, CONTENT OR MATERIALS IT CONTAINS. UNMATCHED SOLUTIONS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE PLATFORM. UNMATCHED SOLUTIONS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT, NON-INFRINGING, OR FREE OF ERRORS, VIRUSES OR INTERRUPTIONS.
13. Limitation on Liability.
Except for the indemnification obligations contained in this agreement and breaches of confidentiality obligations, neither party, or such party’s respective affiliates or related companies, or any of their respective directors, officers, employees, consultants or agents, will be liable to the other party, for any indirect, incidental, special, exemplary, punitive, or consequential damages, or damages based on lost profits (collectively, a “Loss”) that result from such party’s performance or failure to perform under this agreement. These limitations apply regardless of whether the party liable, or allegedly liable, was advised, had other reason to know, or in fact knew of the possibility of such damages.
14. Indemnification by Unmatched Solutions.
Unmatched Solutions shall indemnify, defend and hold harmless the Customer from and against all claims, demands, Loss, costs (including, without limitation, reasonable attorneys’ fees and costs), damages, and actions brought by third parties based on allegations that the Platform infringes upon any intellectual property rights having effect in the United Kingdom. If the Platform becomes, or in Unmatched Solutions’ opinion may become, subject to an infringement claim, Unmatched Solutions may, at its option and at its own expense:
- procure for the Customer the right to continue using the Platform as contemplated herein;
- modify the Platform so it become non-infringing while remaining functionally equivalent.
If Unmatched Solutions, in its sole discretion, determines that the above options are not commercially reasonable, Unmatched Solutions may terminate this agreement.
Unmatched Solutions will not be liable for any infringement of intellectual property rights resulting from the Customer’s use of the Platform other than as expressly permitted by this agreement, or as a result of usage in combination with third party products, services, processes or materials.
15. Indemnification by Customer.
The Customer shall indemnify, defend and hold harmless Unmatched Solutions from and against all claims, demands, Loss, costs, damages, and actions brought by third parties relating to:
- any ads trafficked by the Customer through the Platform;
- any collection or use of PII by the Customer;
- any negligent act or omission of or willful misconduct by agents or employees of Customer; or,
- any breach of this agreement by Customer.
16. Process for Indemnification.
Any party entitled to indemnification under this agreement (“Indemnified Party”) shall provide written notice of any actual or threatened claims as soon as practicable to the other party (“Indemnifying Party”), in order to enable the Indemnifying Party to arrange for and assume control of defense of such claims; provided that any delay in providing such notice does not relieve the Indemnifying Party of its obligations, except to the extent prejudiced by such delay. The Indemnifying Party may assume and control the defense or settlement of any claims; provided that the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement with respect to the claims where such settlement involves an admission of guilt, negligence or wrongdoing by the Indemnified Party without the prior written consent of the Indemnified Party, which consent may not be unreasonably withheld. The indemnification provided by this agreement does not preclude any other rights to which the Indemnified Party may be entitled.
17. No Sequential Liability.
The Customer shall pay Unmatched Solutions all amounts owing in respect to use of the Platform, irrespective of whether it is paid by its own customers for such. Unmatched Solutions does not accept insertion orders claiming sequential liability in respect to usage of the Platform, and any such provision in a delivered IO is deemed void.
Unmatched Solutions may provide the Customer with credit, or require prepayment in advance. Unmatched Solutions may conduct credit and reference checks (both internally and utilizing 3rd party providers) in order to assess the Customer’s credit-worthiness; the Customer hereby authorized Unmatched Solutions to do so. The advancement of credit is subject to Unmatched Solutions’ Credit Agreement.
19. Confidential Information.
With respect to any Confidential Information, the Receiving Party shall:
- use the same degree of care to protect Confidential Information of the Disclosing Party that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care);
- not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement;
- not disclose Confidential Information to any third party, except as otherwise permitted under this agreement; and,
- except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Interpretation. In this agreement:
- the word “shall” is mandatory;
- the word “may” is permissive;
- the word “or” is not exclusive;
- the words “include”, “includes” and “including” are not limiting;
- the singular includes the plural
- words importing a specific gender include the other gender; and,
- references to persons include individuals, partnerships, trusts, associations, unincorporated organizations and corporations.
- Currency. All dollar amounts referred to in this agreement are in United States dollars (USD).
- Headings. The division of this agreement into articles and sections, and the insertion of headings, is for convenience of reference only. These do not affect the construction or interpretation of this agreement.
- Severability. If any provision of this agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this agreement will remain in effect.
- Survival. All payment obligations incurred prior to termination shall survive termination, and any other provisions hereof that may be reasonably interpreted as surviving beyond termination shall so survive.
- creating or evidencing any association, joint venture, partnership, or franchise between the parties;
- imposing any partnership or franchise obligation or liability on either party;
- creating an exclusive relationship or prohibiting or restricting either party from doing business with any other party.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Entire Agreement. This agreement, including all terms, agreements and policies referenced herein, and the terms specified in any order placed on the Platform constitute the final and complete expression of the agreement between Customer and Unmatched Solutions regarding their subject matter. These terms and conditions supersede, and all previous oral and written communications regarding these matters. No employee, agent, or other representative of Unmatched Solutions has any authority to bind Unmatched Solutions with respect to any representation, warranty, or other expression related hereto unless it is specifically set forth in a written agreement signed by Customer and Unmatched Solutions. Any provision of these terms and conditions which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of these terms and conditions or affecting the validity or enforceability of such provisions.
- Waivers. No failure or delay on the part of either party in exercising any right, power or remedy under these terms and conditions will operate as a waiver, nor will any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
- Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this agreement in its entirety without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law. This agreement and all controversies arising from or relating to performance hereunder are governed by and construed in accordance with the laws of England, without giving effect to the conflict of laws principles of any jurisdiction. The prevailing party in any dispute shall be entitled to recover from the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including reasonable attorneys’ fees and expenses. The parties irrevocably submit to the exclusive jurisdiction of the courts sitting in England, with respect to any matter arising under this agreement.
- WAIVER OF RIGHT TO JURY TRIAL. ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT, ANY OTHER AGREEMENT RELATED HERETO OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES, AND THEREFORE, ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
- Force Majeure. Except for the payment of money, neither party shall be considered in default of performance of its obligations under this Agreement to the extent that performance of such obligations is delayed by force majeure. If a party to this Agreement is prevented from or delayed in performing any of its obligations hereunder by force majeure, it shall notify the other party of the circumstances constituting force majeure and of the obligation which is delayed or prevented, and the party giving the notice shall thereupon be excused of the performance of such obligation for as long as the circumstances of force majeure may continue.
- Notices. All notices, demands and other communications provided for or permitted under this agreement must be made in writing by personal delivery or by email, to the contact address set forth in the Platform Agreement.
- Counterparts. This agreement may be executed and delivered by facsimile or portable document format (.pdf) signature and in one or more counterparts, each of which is deemed an original, but all of which together constitute one and the same instrument.