Taggify Market Agreement - Demand Service
This Agreement is between Taggify, Inc. with offices at 1900 University Ave, 5th floor, East Palo Alto, CA 94303 (“Taggify”) and the (“Company”).
Taggify and Company hereby agree as follows:
1. TERM. The “Term” of this Agreement begins on the Start Date and ends when terminated in accord with Section 8.2.
2. TAGGIFY SERVICE.
“Service” means the service provided by Taggify that enables buyers (e.g., advertisers and ad agencies) to display advertisements on third party websites and other online properties. Taggify will use commercially reasonable efforts to provide the Service to Company.
3. LICENSE TO USE SERVICE.
3.1 Grant. During the Term and provided Company has met its payment obligations, Taggify grants to Company a non-exclusive, non-transferable, nonsublicensable right to use the Service as described in this Agreement and in accord with any usage requirements specified by Taggify from time to time. This Agreement applies to Company’s use of the Service for itself and on behalf of any Company clients.
3.2 Limits. As between Taggify and Company, Taggify owns all right, title and interest in and to the Service, including future developments and enhancements. Aside from the license granted immediately above, Taggify does not grant Company any other license, express or implied. Taggify reserves all rights not expressly granted hereunder, including the right to continually evolve the Service and all related technologies. Company will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Service or any portion thereof. Under no circumstances may Company use the Service for benchmarking, gathering data on the performance of the Service or Taggify systems or competitive intelligence.
4.1 Publisher and End User Information. Company will have access to detailed information about publishers and other sellers, 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 this information, will only use this information for the purpose of buying inventory through the Service and will treat such information as Confidential Information. Company may create targeting profiles or segments based on the ads Company shows 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) shown in the Taggify Market, provided that Company may not retain such information and/or include it in a targeting profile or segment.
Company will pre-pay Taggify for the inventory purchased by Company. Taggify’s impression counts and record of the price per impression will be the final statistic used for invoicing. Payment will be made in US dollars. Except for taxes on Taggify’s income, Company is responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Service.
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 follow Taggify's standard technical specifications. Company shall also comply with the Taggify Market Demand Policies. If Taggify posts updated policies during the Term, Company will comply with the updated policies.
7.1 Each party will comply with all applicable laws and regulations (Taggify as to its provision of the Services and Company as to its use of the Services). To clarify, 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 be misleading, libelous, obscene, invasive of others’ privacy, or hateful (racially or otherwise), will not introduce viruses or other malware to the Taggify systems or end users, and will not infringe any third party’s intellectual property or other rights. 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 and its clients. Taggify reserves the right to refuse or take down any advertisements, websites and other digital platforms.
8. SUSPENSION, TERMINATION AND PENALTY.
8.1 Suspension. Taggify may suspend Company's use of the Service immediately upon notice if Taggify reasonably believes that Company has violated Section 7 or has violated the Taggify Market Policies for Advertising Creatives, or if Company has failed to pay an invoice in full within thirty days and within ten days of receiving a late notice from Taggify.
8.2 Termination. Either party may terminate this Agreement (a) for material breach, if the other party fails to cure within ten (10) days of receiving notice; or (b) for convenience, upon thirty (30) days written notice. In addition to the foregoing, and notwithstanding anything to the contrary herein, Taggify may terminate this Agreement immediately upon notice if it determines, in its sole discretion, that any advertising creatives are in violation of the Taggify Market Policies for Advertising Creatives. Upon termination for any reason, Company’s right to use the Service shall immediately terminate.
8.3 Penalty. Every time malware is detected in the campaigns uploaded by the advertiser, a USD 100 penalty cost will be subtracted from their account in order to be able to maintain the anti-malware efforts of the network. If malware is detected more than three times from the same advertiser, Taggify reserves the right to completely cancel the user's account.
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 ONSEQUENTIAL 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 AS 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 (a) FOR ALL NON-INDEMNITY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT: THE AMOUNT CHARGED TO COMPANY BY TAGGIFY FOR USE OF THE SERVICE FOR THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE (“SIX MONTH LIMIT”), AND (b) FOR INDEMNITY OBLIGATIONS: FIVE TIMES THE SIX MONTH LIMIT. NOTHWITHSTANDING ALL OF THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT LIABILITY FOR BREACHES OF SECTIONS 3, 7 OR 12.
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 Services, in the form provided by Taggify, infringes any US 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 Sections 3 or 7 of this Agreement; (b) Company’s use of 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 or delayed.
“Confidential Information” means any information relating to or disclosed in the course of the 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 Section. 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 and complies with any protective order imposed on such disclosure.
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 potential customer, provided that such information is covered by confidentiality obligations.
13.2 Notwithstanding any other provision of this Agreement, where Taggify has reasonable cause to suspect wrongdoing or misuse of the Services, Taggify reserves the right to investigate Company’s use of the Services. If Taggify believes wrongdoing or misuse of the Services 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 is the entire agreement of the parties relating to this subject matter, and supersedes all prior commitments, negotiations and understandings with respect to Company's 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. Sections 9-13 of these T&Cs 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 apparently 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.
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 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.
13.8 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.