This Market Agreement (this "Agreement") is made and effective as of the Start Date (as defined below) by and between Taggify, Inc., with offices at 1900 University Ave, 5th floor, East Palo Alto, CA 94303 ("Taggify"), and the company identified hereunder ("Company").
In consideration of the terms, covenants and conditions described herein, Taggify and Company hereby agree as follows:
1. TERM. The term of this Agreement (the "Term") begins on the Start Date identified above (the "Start Date") and ends when terminated in accordance with Section 8 below.
2. TAGGIFY SERVICE.
As used in this Agreement, "Service" means the service provided by Taggify pursuant to this Agreement that enables the display of Company-sponsored advertisements on third party websites and other online properties. Taggify will use commercially reasonable efforts to provide the Service to Company, subject to the terms and conditions of this Agreement.
3. LICENSE TO USE SERVICE.
3.1 Grant. During the Term, and provided that Company has satisfied all payment obligations to Taggify hereunder, Taggify hereby grants to Company a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Service and its features and functionality (collectively, the "Service Materials") as described in this Agreement and in accordance with any usage requirements specified by or on behalf of Taggify from time to time. This Agreement applies to use of the Service and the Service Materials by Company for itself and on behalf of its clients; provided, however, Company acknowledges and agrees that all representations, warranties and covenants made by Taggify hereunder are provided exclusively to and for the benefit of Company and do not otherwise extend to, and may not otherwise be relied upon by, Company’s clients.
3.2 Limits. As between Taggify and Company, Taggify owns all right, title and interest in and to the Service and the Service Materials, including all future developments, enhancements and derivative works thereof (by whomever produced), and all related documentation and materials. Aside from the license granted to Company pursuant to Section 3.2 above, Taggify does not grant to Company or any of its clients, subsidiaries or affiliates any other right or license, express or implied. Company will not use, rent, lease, sell or in any other way allow others access to or use of the Service or the Service Materials for any purpose whatsoever except in accordance with the rights granted under this Agreement. Taggify reserves all rights not expressly granted hereunder, including the right to continually evolve the Service and the Service Materials and all related technologies. Company will not, and will not allow any of its employees or any other individual or entity acting on its behalf to, reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Service or the Service Materials or any portion thereof. Under no circumstances may Company use the Service or the Service Materials for benchmarking, gathering data on the performance of the Service or Taggify systems or competitive intelligence.
4.1 Publisher and End User Information. Company may, through use of the Service, be provided access to detailed information about publishers and other online sellers of products and services (collectively, "Publishers"), including, but not limited to, their targeting and blocking criteria. Company will only permit Company employees who are directly involved in using the Service to access such information, will only use such information for the purpose of buying inventory through the Service pursuant to this Agreement and will treat such information as Confidential Information of Taggify. Company may create targeting profiles or segments based upon the ads Company displays to users and user interaction with such ads, but Company may not create targeting profiles or segments on the basis that a user has visited a particular Publisher, the "Taggify Market" category(ies) that apply to the Publisher, the content on the Publisher’s page or site, or the general interest area(s) covered by the Publisher. The foregoing does not prohibit Company from targeting its ads in real time on the basis of the Publisher category(ies) displayed in the "Taggify Market", provided that Company may not retain such information and/or include it in a targeting profile or segment.
5.1 Fees. Upon company's request, Taggify will provide an invoice to Company at the end of each month for the inventory purchased by Company through the Service during such month at such prices as disclosed to Company from time to time. In addition to the standard fees for inventory purchased hereunder, Taggify shall be entitled to charge, and Company agrees to pay, a fee in the amount of USD 100 per each incident in which "malware" (i.e., any software used to disrupt computer operation, gather sensitive information or gain access to private computer systems) is detected on Company-sponsored advertisements (including any websites or other digital platforms that are linked to any Company-sponsored ads); provided, however, that payment of such additional fees shall not relieve Company from liability for any losses or other damages incurred by Taggify in connection with the presence of such "malware" in violation of this Agreement.
5.2 Terms of Payment. Terms of Payment. Company will pre-pay Taggify all fees set forth in the applicable invoice in full within the online payment methods specified by Taggify. Taggify’s impression counts and record of the price per impression will be conclusive and, barring any patent errors or omissions, shall not be subject to dispute. Except for taxes on Taggify’s income, Company is responsible for paying all applicable sales, use or other taxes, duties, tariffs or other governmental charges applicable to the Service.
Refund: If the company requests a refund for its remaining credit, the refund will be processed and returned to the company in approximately five to ten (5-10) business days. Taggify will charge a 10% administrative fee that will be deducted from the remaining balance.
6. TECHNICAL SPECIFICATIONS.
Company’s advertisements will meet the IAB Ad Unit Guidelines (described at http://www.iab.net/iab_products_and_industry_services/1421/1443/1452 as of the date of this Agreement), and Company will comply with Taggify’s standard technical specifications and the Taggify Market Demand Policies, including any updates thereof, as provided or made available to Company from time to time.
7.1 General Compliance. Each party will comply with all applicable laws and regulations (Taggify as to its provision of the Service and Company as to its use of the Service). Without limiting the generality of the foregoing, Company agrees that all ads, websites and other digital platforms with which Company uses the Service (including any websites or other digital platforms that are linked to any Company ads) for itself or on behalf of its clients will comply with all applicable laws and regulations, will not:
- contain any material which is misleading, libelous, obscene, indecent, abusive, offensive, harassing, inflammatory, invasive of others’ privacy, or hateful (racially or otherwise);
- promote sexually explicit material, any nudity, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- infringe or violate the legal rights (including any intellectual property rights or the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations;
- be likely to deceive any person or promote any illegal activity or unlawful act;
- introduce viruses or other "malware" to the Taggify systems or the end users; or
- give the impression that they emanate from or are endorsed by Taggify or its affiliates or any other person or entity, if this is not the case.
Company will not use the Service in a manner that could reasonably be expected to damage the Service or reflect unfavorably on the reputation of Taggify or its affiliates. Taggify reserves the right to refuse or remove any advertisements, websites and other digital platforms.
Either party may terminate this Agreement (a) for material breach (including, without limitation, Company’s failure to make any payments due hereunder), if the other party fails to cure such breach within ten (10) days of receiving notice, (b) for convenience, upon thirty (30) days written notice, or (c) immediately, if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such other party, and not dismissed within sixty (60) days. Taggify may further terminate this Agreement immediately upon notice if Taggify reasonably believes that Company (i) has violated Section 3.2, Section 7 or Section 12 hereof, or (ii) has violated the Taggify Market Policies for Advertising Creatives, including any updates thereof, as provided or made available to Company from time to time. Upon termination for any reason, Company’s right to use the Service shall immediately terminate.
EXCEPT AS EXPRESSLY PROVDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICE IS MADE AVAILABLE "AS IS" AND "AS AVAILABLE" AND TAGGIFY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET COMPANY'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS, OR (D) THE SERVICE OR THE INFRASTRUCTURE THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, ERCHANTABILITY, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE.
10. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE OBLIGATION TO PAY FOR ANY MINIMUM FEES, GUARANTEES AND SERVICES ALREADY RENDERED, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY SHALL EXCEED THE AMOUNT CHARGED TO COMPANY BY TAGGIFY FOR USE OF THE SERVICE FOR THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE. NOTHWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 10, NOTHING IN THIS AGREEMENT SHALL LIMIT A PARTY’S LIABILITY FOR A BREACH OF SECTION 3.2, 7 OR 12 OR RESULTING FROM AN INDEMNITY OBLIGATION PURSUANT TO SECTION 11.
11. MUTUAL INDEMNITY.
Taggify shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and successors, heirs and assigns) (the "Company Parties") against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Company Parties in connection with any third-party claim that Taggify’s proprietary technology that provides the Service, in the form provided by Taggify, infringes any U.S. patent or other third party intellectual property right. Company shall indemnify, defend and hold harmless Taggify and its directors, officers, employees and agents, its and their respective successors, heirs and assigns, and other customers of the Services (e.g., advertisers, publishers, ad networks, ad agencies) (the "Taggify Parties") against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Taggify Parties in connection with any third-party claim arising out of or relating to (a) any allegation that would constitute a breach of Section 3 or 7 of this Agreement, (b) Company’s use of the Service (not including claims for which Taggify is indemnifying Company), or (c) any allegation that any advertisement, website or other material provided by Company (including the ads, websites and other materials of Company’s clients) violates any applicable law or infringes any third party right, including but not limited to intellectual property rights. The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide information and assistance reasonably necessary to defend such claim. The indemnitor will not enter into any settlement or compromise that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
12.1 Confidentiality. As used in this Agreement, "Confidential Information" means any information relating to or disclosed in the course of this Agreement, which is or should reasonably be understood to be confidential. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by the other without the written consent of the other) and data regarding the performance of the Taggify systems is Taggify Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. "Confidential Information" does not include information that (a) is or becomes part of the public domain through no fault of the receiving party, (b) was already in possession of the receiving party, or (c) was independently developed by the receiving party without violation of this Agreement. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice (to the extent lawfully permitted) and reasonably complies, at the sole cost of the disclosing party, with any protective order imposed on such disclosure.
12.2 Injuctive Relief. Each party acknowledges that the unauthorized use, transfer or disclosure of Confidential Information will (a) substantially diminish the value of the disclosing party of the trade secrets and other proprietary interests of such party, (b) render the disclosing party’s remedy at law for such unauthorized use, disclosure or transfer inadequate, and (c) cause irreparable injury in a short period of time. If either party breaches any of its obligations with respect to the use or disclosure of the other party’s Confidential Information, the disclosing party shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
13.1 Neither party will make any public statement relating to the Agreement without the prior written approval of the other, provided that Taggify may include Company’s name and logo on its marketing and promotional materials and customer lists. In addition, Taggify may include Company’s name and positive information metrics in case studies that Taggify shares with its existing and potential customers, provided that such information is subject to customary confidentiality obligations.
13.2 Notwithstanding any other provision of this Agreement, where Taggify has reasonable cause to suspect wrongdoing or misuse of the Service, Taggify reserves the right to investigate Company’s use of the Service. If Taggify believes wrongdoing or misuse of the Service has in fact occurred, Taggify may disclose information produced by or related to such investigation to law enforcement, regulatory bodies or third parties involved in or affected by the investigation.
13.3 This Agreement is the entire agreement of the parties relating to the subject matter hereof and supersedes all prior commitments, negotiations and understandings with respect to Taggify’s provision of the Service to Company and Company's use thereof and participation in the "Taggify Market". This Agreement cannot be amended except by a writing signed by both parties. This Agreement cannot be transferred or assigned without prior written consent of the non-assigning party; provided, however, that either party may assign this Agreement (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or (b) to a corporate affiliate. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. There are no third party beneficiaries to this Agreement. Section 3.2 and Sections 9 through 13 of this Agreement will survive termination or expiration of this Agreement. Any claim arising under or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
13.4 Notices must be in writing and will be deemed given when (a) delivered personally, (b) sent by email, if to Taggify to the following email address: email@example.com, and if to Company to its specified representative at the email address provided herein, if the sending party can confirm that the email was sent successfully according to its ordinary technical records and does not receive an error notice and the email includes in the subject line "LEGAL NOTICE". Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone or other reasonable means.
13.5 This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles.
13.6 Any action arising under or related to this Agreement will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the case of injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party is entitled to reasonable attorneys’ fees and costs. The arbitration will be kept confidential except as required by law.
13.7 For all purposes, the relationship between Taggify and Company shall be that of independent contractors, and nothing contained in this Agreement shall be construed as creating any relationship of agency, partnership, franchise, joint venture, employment or similar relationship between the parties.
13.8 Multiple signature pages, signatures delivered via scanned-in PDF copy or fax, and electronic signatures will all constitute originals and together will constitute one and the same instrument.
13.9 Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.