These online terms and conditions supplement the MSA entered into by the Company and MW.
The Company and MW may hereinafter be singularly referred to as a “Party” and collectively referred to as the “Parties”.
1. DEFINITIONS
In this MSA including the recitals, the following words shall have the following meanings:
1.1. “Ad Inventory” means advertising impressions served through a digital medium, including without limitation, on browsers, applications, TVs, and Out of Home platforms. For the purpose of clarity, this will also include online advertising impressions bought on Search and Social Media platforms.
1.2. “Creative” means a unit of advertising content.
1.3. “Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party.
1.4. “Client” means an advertiser, network or other third party, if any, on whose behalf Company utilizes a Service.
1.5. “Company” shall have the same meaning as ascribed to the term within the applicable MSA, and, unless repugnant to the context or meaning thereof, shall mean and includes the successors-in-interest and permitted assigns of such legal entity.
1.6. “Confidential Information” means any information that is disclosed provided or made accessible by, or on behalf of, one Party to the other Party in connection with this MSA, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary (e.g. product or business plans), but does not include information that the recipient already knew, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information.
1.7. “Effective Date” shall have the same meaning as ascribed to the term within the applicable MSA.
1.8. “MW” means Mediawrkz, Inc. and, unless repugnant to the context or meaning thereof, shall mean and includes its representatives, successors-in-interest and assigns.
1.9. “Net Earnings” means the total sum paid by Company to MW minus any flowthrough revenue, costs or commissions payable by MW to any third parties, including but not limited to any search, social and programmatic platforms such as Google, Meta, LinkedIn and TikTok.
1.10. “MSA” means the applicable master services agreement signed by the authorised representatives of the Company and MW as of the Effective Date.
1.11. “Services” means the purchase of Ad Inventory and the deployment of Creatives all based on Company’s instructions, along with the provision of analytics and reports on campaign execution from time to time, as expressly stipulated within each applicable Insertion Order.
1.12. “Sites” means the digital properties on which a Creative is deployed (including, but not limited to, web and mobile sites, video players, mobile applications and third-party platforms such as Google AdWords and Meta Marketing.
1.13. “Subcontractor” means, with respect to a Party, a subcontractor, consultant third- party service provider or agent engaged by such Party (or a Client or Affiliate of such Party) in connection with its use or provision of Services, both of which are permitted under this MSA and the Insertion Orders.
2. PAYMENT; PAYMENT OBLIGATIONS
2.1 Invoicing.
MW shall raise its invoices on the Company through JDA.
2.2 Payment Dates and Terms.
Payment dates and related terms for each particular Service shall be set forth in the applicable Insertion Order.
2.3 Additional Payment Rules.
a) Late payments that are not disputed in good faith bear interest at the rate of l.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. The amounts invoiced hereunder do not and will not include any taxes levied by or due to any duly authorized taxing authority. Company will pay all applicable taxes and other government charges, if any, however designated, derived from or imposed on the transactions contemplated hereby, including without limitation sales, value-added, use, and transfer, withholding privilege, excise and other taxes and duties. Company will pay reasonable expenses and outside attorneys’ fees MW incurs in collecting late payments that are not disputed in good faith.
b) Notwithstanding anything to the contrary in this MSA, Company will be ultimately responsible for any and all payment obligations for its purchases of Ad Inventory through the Services.
c) Unless warranted by requirements of usage of specific platforms, all bidding, pricing and invoices will be in USD.
3. DUTIES AND OBLIGATIONS OF THE COMPANY
3.1 Prohibited Acts
a) General. Company will not, will not attempt to, and will not assist or knowingly permit any third party to:
i. pass personally identifiable information to MW; or
ii. alter or tamper with any information or materials on or associated with any Service.
b) Company hereby further covenants that
i. none of the Creatives provided to MW will, when viewed or clicked on by a user(s), cause the download or delivery of any software application executable code, virus, or malicious or social engineering (phishing) code or features; and
ii. none of the Creatives provided to MW, and none of the sites to which a user is directed following a click on any such Ad Unit, will be obscene, deceptive or otherwise illegal
MW may reject, remove or deactivate Creatives that do not comply with policies, or do not comply with any applicable law, rule or regulation or for any reasonable business reason.
4. COMPANY’S REPRESENTATIONS AND WARRANTIES
4.1 Company hereby represents and warrants that it has and will have all necessary rights and authority (x) to enter into this MSA and each Insertion Order and (y) to perform its obligations hereunder and thereunder; and
4.2 Company will (x) include within each applicable Insertion Order, all reasonably applicable requirements to deliver the Services in compliance with Company’s other agreements, (y) have obtained and be deemed to have hereby granted to MW, all rights necessary to allow MW to store, audit, optimize, and serve Creatives and otherwise provide the Services hereunder.
5. MW’S REPRESENTATIONS AND WARRANTIES
5.1 MW hereby represents and warrants that it has and will have all necessary rights and authority (i) to enter into this MSA and each Insertion Order and (ii) to perform its obligations hereunder and thereunder.
5.2 MW will (a) provide Services to Company in accordance with the terms set out herein and each Insertion Order; and (b) use commercially reasonable efforts to serve Creatives to Ad Inventory. Notwithstanding anything to the contrary in this MSA, MW will have no liability or other responsibility whatsoever with respect to the content of any Creative or any Ad Inventory or Site.
6. TERM, TERMINATION & SUSPENSION
Unless earlier terminated this MSA will remain in effect until all Insertion Orders have terminated. Each Party may terminate an Insertion Order immediately on notice to the other Party that it is in material breach of this MSA with respect to such Service; provided that (x) if the breach is capable of cure, the breaching Party will have 30 days from the notice date to cure the breach to the non-breaching Party’s reasonable satisfaction; and (y) MW may immediately suspend delivery of any or all Services under the Insertion Orders on notice to Company if, in MW’s reasonable discretion, Company breaches any of the clauses of Section 4 hereof. If Company fails to pay fees invoiced by MW (other than fees disputed in good faith) by the applicable payment due date, MW may suspend each applicable Service, in whole or in part, on notice to Company. Notwithstanding termination of this MSA, any provisions of this MSA that by their nature are intended to survive, will survive termination.
7. DATA; PROPRIETARY RIGHTS
7.1 Data.
As between Company and MW and subject to terms and conditions of this MSA (including without limitation, Section 4.1 hereof), all data derived from transactions (i.e., purchases and sales of Ad Inventory and the serving of Creatives to such Ad Inventory) conducted pursuant to its use of Services (collectively, “Company Data”) shall belong to Company; provided that MW may use and disclose Company Data solely:
a) as aggregate Service statistics,
b) to provide the Services (it being understood and agreed that without limiting the generality of the foregoing, MW may disclose certain Company Data, in connection with the operation of the Services, to third parties from which MW has purchased Ad Inventory under an Insertion Order
c) to (x) Subcontractors and other third-party service providers (e.g. auditors) of MW who need to know it and who are obligated to keep it confidential subject to the terms and conditions hereto and (y) third parties whose services Company has elected to use though the applicable Service(s) and who are obligated to keep it confidential subject to the terms and conditions hereto,
d) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Company and using commercially reasonable efforts to provide Company with the opportunity to seek a protective order or the equivalent (at Company’s expense), and
e) as may otherwise be elected by Company within the applicable Service(s); provided further, however, that MW’s retrieval and/or provision to Company of event- level data and/or custom reports derived from Company’s use of Services may result in additional fees hereunder (to be agreed by MW and Company in writing through an Insertion Order) based on storage and service costs. For purposes hereof, notwithstanding anything herein to the contrary, but subject to the provisos in this Section 10.1, Company Data will be Confidential Information of Company.
7.2 Proprietary Rights.
a) As between the Parties, MW owns and will retain all right, title and interest in and to each of the Services (in each case, including but not limited to all concepts, methodologies, techniques, models, templates, trade secrets, processes, information, materials and know-how contained therein, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals, related thereto and all other aspects of such technology, the name “MW” or any derivatives thereof and any other trademarks and logos which are owned or controlled by MW and made available to Company through the Services or otherwise hereunder and all intellectual property and proprietary rights in and to all of the foregoing. As between the Parties, Company owns and will retain all rights, title and interest in and to its intellectual property, including any modifications, updates, enhancements and derivative works thereof.
b) Each Party reserves any and all rights not expressly granted in this MSA and disclaims all implied licenses including without limitation implied licenses to trademarks, copyrights, trade secrets and patents.
8. DISCLAIMERS; LIMITATION OF LIABILITY
8.1. EACH PARTY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES FOR NON-INFRINGEMENT (IT BEING UNDERSTOOD THAT, FOR PURPOSES OF CLARIFICATION, THE FOREGOING WILL NOT LIMIT EITHER PARTY’S IP INFRINGEMENT OBLIGATION SET FORTH IN SECTION 12 (INDEMNIFICATION) OF THIS MSA), MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
8.2. TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) EXCEPT (i) FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THIS MSA AND (ii) WITH RESPECT TO BREACHES OF SECTION 8 (CONFIDENTIALITY) OF THIS MSA, NO PARTY MAY BE HELD LIABLE UNDER THIS MSA OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS MSA FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE; AND (b) EXCEPT WITH RESPECT TO (i) ITS FRAUD OR INTENTIONAL MISCONDUCT AND (ii) IT’S PAYMENT OBLIGATIONS UNDER THIS MSA, MW’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO A PARTICULAR INSERTION ORDER WILL NOT EXCEED THE TOTAL AMOUNT OF NET EARNINGS PAID BY COMPANY TO MW WITH RESPECT TO SERVICES UNDER SUCH INSERTION ORDER DURING THE SIX (6) MONTHS BEFORE THE DATE WHEN THE LIABILITY AROSE.
9. INDEMNITY
9.1 Each Party (in such capacity, the “Indemnitor”) will defend, indemnify and hold harmless the other Party and its officers, directors, employees and agents (each, an “Indemnitee”) from all third party claims or liabilities and related expenses (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to (i) the Indemnitor’s breach or alleged breach of this MSA (including, for purposes of clarification, any Insertion Order), (ii) the Indemnitor’s breach or alleged breach of applicable law, (iii) MW making available Creatives provided to MW by either the Company, its Subcontractor or any third party introduced by the Company to run any advertising campaign hereunder, in accordance with the instructions of the Company or any third party introduced by the Company, or (iv) the infringement or misappropriation of a third party’s patent, trademark, trade secret copyright or any other intellectual property right in connection with the Creative, technology, data or other materials provided by Company, its Subcontractor or any third party introduced by the Company to MW for utilization by MW in connection with the Services hereunder.
9.2 The Indemnitee must (i) promptly notify the Indemnitor in writing of the third-party claims (provided that failure of the Indemnitee to promptly notify the Indemnitor will not relieve the Indemnitor of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnitor in the defence of the matter and (iii) give the Indemnitor primary control of the defence of the matter and negotiations for its settlement. The Indemnitee may at its expense join in the defence with counsel of its choice. The Indemnitor may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnitor and (B) includes a complete release of the Indemnitee; any other settlement will be subject to written consent of the Indemnitee (not to be unreasonably withheld or delayed).
10. PRIVACY
Company will ensure compliance with all applicable privacy laws, rules and regulations. Company will ensure that each of its Sites contains, and will advise in writing each of its clients that each of their Sites is required to contain: (x) a privacy policy that (a) discloses (i) the usage of third-party technology and (ii) the data collection and usage resulting from the Service (it being understood that this clause (a) will not be deemed to require those privacy policies to expressly identify MW or any Service, unless otherwise required by law, rule or regulation), (b) contains a conspicuous live hyperlink to an opt-out web site that provides the user the ability to opt out of interest- based advertising through the Services, if data is collected on such Site(s) through the Service for purposes of interest-based advertising, and (c) complies with all applicable privacy laws, rules and regulations; and (y) to the extent required by applicable law, rule or regulation, a mechanism to obtain, with respect to the use of MW’s Services, users’ prior and informed consent to the usage of third-party technology (reasonable evidence of such consent to be maintained to the extent so required).
11. NON- SOLICITATION
During the term of the Agreement and for a period of one (1) year thereafter, neither Party shall (either directly or indirectly through a third party) employ, solicit to employ, cause to be solicited for the purpose of employment or offer employment to any employee, consultant or Subcontractor of the other Party who are connected with the Services to be provided under this Agreement, or aid any third person to do so, without the specific written consent of the other Party.
12. DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES AS STATED IN THIS SECTION 14, MW DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED “AS IS.” MW DOES NOT WARRANT THAT THE SERVICES PROVIDED WILL OPERATE UNINTERRUPTED OR ERROR-FREE. MW AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY CONTENT INSIDE ANY CREATIVES SERVED. MW MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS COMPANY WILL OBTAIN BY USING THE SERVICES.
13. MISCELLANEOUS
13.1 Headings. The section headings used in this MSA are intended for reference purposes only and shall not affect the interpretation of this MSA.
13.2 Counterparts. This MSA may be executed in counterparts (which may be exchanged by facsimile), each of which shall be deemed an original, but which together shall constitute one and the same instrument.
13.3 Waiver. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this MSA shall operate as a waiver thereof.
13.4 Cumulative Remedies. Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
13.5 Severability. If and to the extent any provision of this MSA is held invalid or unenforceable at law, such provision shall be modified so as to have meaning as close as legally possible to the terms therein, or (if modification is not possible) stricken from the MSA, and the remainder of the MSA shall continue in full effect and be enforceable to the fullest extent permitted by law.
13.6 Relationship. MW is an independent contractor and this MSA does not create an agency, partnership, or joint venture relationship between MW and Company / any Company personnel.
13.7 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non- performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.
13.8 Notices. Unless otherwise stated, all notices, approvals, instructions and other communications for the purposes of this MSA shall be given in writing and may be given by personal delivery or by sending the same by registered post or electronic medium addressed to the Party concerned at the address stated herein, or any other address subsequently notified to the other Parties for the purposes of this Clause and shall be deemed to be effective in the case of personal delivery or delivery by registered post at the time of delivery.
13.9 Publicity. Either Party grants the other, the limited right to use the other’s name and any trademarks or service marks in connection with this MSA. Such use of other party’s name and trademarks shall be solely to identify the other as business partners under this MSA. Sufficient care will be taken to ensure that neither Parties deem to explicitly or implicitly endorse the activities of the other, or which is likely to cause confusion as to Company’s relationship to MW’s services. Both Parties shall allow the other to use its name as a reference.
13.10 Marketing Materials. Both Parties agree to use any marketing materials provided by the other party only for the purpose of marketing the Services detailed in this MSA and its Insertion Orders. Neither Party shall use such provided marketing materials in any manner not authorized by the other Party.
13.11 Governing Law / Jurisdiction. This MSA, and all matters arising directly or indirectly from this MSA, shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of laws rules applicable to contracts to be performed entirely within Austin, Texas. For all such matters, each Party, subject to the provisions of the below paragraph, irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Austin, Texas and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
13.12 Survival. The obligations under sections that contemplate performance or observance subsequent to termination or expiration of this MSA, and any other sections that state that they are to survive expiration or termination, shall survive the expiration or termination of this MSA, including the following sections: Section 6 (“Representations and Warranties”), Section 9 (“Confidentiality”), Section 11 (“Disclaimer & Limitation of Liability”), Section 12 (Indemnity), Section 14 (Non-Solicitation) Section 16 (“Miscellaneous”) and this Section 14.15 (“Survival”).
