Terms and Conditions for Advertisers
Effective June 20, 2017
This Agreement governs the placement of Ads by Advertiser on Publisher Inventory (as such terms are defined herein).
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings given to them below.
1.1“Ad Impression” means each occurrence of an Ad being displayed on Publisher Inventory to an End-User.
1.2“Ad” means a text-based, graphical, interactive, rich media, social, e-mail, video or other online advertisement to be provided by Advertiser to Amobee.
1.3“Ad Creative” means creative content, including but not limited to banners, video, text, links, keywords and HTML, for marketing Advertiser’s service or product pursuant to the Insertion Order.
1.4“Advertiser” means the person or entity identified as “Advertiser” or “Agency” in the associated Insertion Order.
1.5“Advertiser Party” has the meaning given in Section 11.
1.6“Agreement” means these Terms and Conditions for Advertisers, together with the associated Insertion Order.
1.7“Amobee” means the legal entity identified in the Insertion Order as such.
1.8“Amobee Data” has the meaning given in Section 6.
1.9“Amobee Party” has the meaning given in Section 11.
1.10“Campaign” is the basic unit of business between an Advertiser and Amobee. Each Campaign may be categorized as a CPA Campaign, CPC Campaign, CPM Campaign, CPM-A Campaign or CPM-C Campaign, or a campaign based on some other kind of Deliverable to be specified in an Insertion Order.
1.11“Claim” has the meaning given in Section 11.
1.12“Confidential Information” has the meaning given in Section 12.
1.13“CPA Campaign” shall mean a Campaign where the Fees are based on the number of specified actions taken by End Users. Examples of an action include a completed sale or a contact form filled in. For this definition, clicks are not considered actions, to distinguish CPA Campaigns from CPC Campaigns.
1.14“CPC Campaign” shall mean a Campaign where the Fees are based on the number of clicks by End Users on the Campaign’s Ad.
1.15“CPM Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions.
1.16“CPM-A Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions, where the Campaign has been optimized to obtain a higher rate of actions by End Users.
1.17“CPM-C Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions, where the Campaign has been optimized to obtain a higher rate of clicks by End Users.
1.18“Creative Service Campaign” shall mean a Campaign for which Amobee has had to create and or design part or all of the Ad Creative.
1.19“Data Aggregator” shall mean any group, company, and or organization that collects and compiles information from Publisher Inventory to sell to others.
1.20“Deliverable” means a type of Ad billable metric (e.g., impressions, clicks or other desired actions) amount to be delivered for a Campaign.
1.21“Disclosing Party” has the meaning given in Section 12.
1.22“Effective Date” means date of signature of the Insertion Order.
1.23“End Users” means users of the Publisher Inventory.
1.24“Fees” means those certain fees indicated in the associated Insertion Order.
1.25“Insertion Order” means an order for Amobee to serve Advertiser’s Ads on Publisher Inventory. An Insertion Order will list one or more Campaigns.
1.26“Intellectual Property Rights” means all works of authorship, registered copyrights, common law copyrights, registered trademarks, common law trademarks, trade dress, labels, designs, logos, patents, patent applications, know-how, trade secrets, database rights, design rights and all other intellectual property rights and associated goodwill (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
1.27“Loss” has the meaning given in Section 11.
1.28“Party” in the context of this Agreement means either Amobee or Advertiser; “Parties” means both Amobee and Advertiser cumulatively.
1.29“Publisher Inventory” means the inventory of a third-party publisher who elects to allow Amobee to place Ads for showing to its End Users.
1.30“Receiving Party” has the meaning given in Section 12.
1.31“Social Account” has the meaning given in Section 4.
1.32“System” means Amobee’s proprietary system and related tools that enable Advertiser to purchase Publisher Inventory and distribute Ads and to manage and administer the foregoing.
1.33“Targeting Criteria” means the parameters made available to Advertiser against which Advertiser may target the display of Ads on Publisher Inventory.
1.34“Term” has the meaning given in Section 7.
2. Insertion Orders. An Insertion Order will be binding only if accepted and signed by Amobee and Advertiser. Each Insertion Order will specify for each Campaign: (a) the Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the Insertion Order (if applicable); and (d) the start and end dates. Other items that may be included are, but are not limited to: the identity of any third-party Ad server; reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.
3. Use of System.
3.1 Use of System. Advertiser agrees to use, and Amobee agrees to make available, the System during the Term according to the terms and conditions of this Agreement. As between Advertiser and Amobee, Advertiser shall be solely responsible for soliciting with the Ads and responding to inquiries in connection therewith.
3.2 License Grant. Amobee hereby grants to Advertiser the non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use the System solely for the purpose of placing Ads in accordance with the terms and conditions of this Agreement.
3.3 Restrictions. Except as set forth in this Agreement, Advertiser agrees not to (a) use or authorize use of the System for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the System or access thereto; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the System or any portion thereof; or (d) attempt to do any of the foregoing.
3.4 No Implied Licenses. Except to the extent set forth herein, (a) Amobee does not grant to Advertiser any other license, express or implied, to Amobee’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant either Party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other Party. Amobee expressly reserves all Intellectual Property Rights not expressly granted hereunder.
3.5 Availability of System. Advertiser understands and agrees that from time to time the System may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Amobee may undertake from time to time; or (c) causes beyond the control of Amobee or which are not reasonably foreseeable by Amobee, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Publisher Inventory, Internet congestion or other failures.
3.6 Publisher Inventory Content. Advertiser understands that Amobee shall not monitor all publisher sites for appropriate content and makes no representations with respect to content associated with any Publisher Inventory. If Advertiser reasonably determines that the placement of any Ad by Amobee or its respective publishers harms the goodwill or reputation of Advertiser, Amobee shall remove, or notify the publisher to remove the Ads within three (3) business days following Advertiser’s notice thereof to Amobee.
4. Ad Content.
4.1 Ad Creative. Advertiser shall provide all of the Ad Creative. Advertiser is solely responsible for all of the Ad Creative including any part created by Amobee pursuant to Advertiser’s instructions. Advertiser shall confirm functionality of Ad Creative twenty-four (24) hours prior to the campaign start date. Amobee is not responsible for reconfirming such confirmation and is not responsible or liable for errors in Ad Creative.
4.2 E-mail Campaigns. To the extent Advertiser is requesting e-mail marketing, Advertiser must provide: (1) the “From”, which shall be (a) Advertiser’s name (if Advertiser is not an agency) or Advertiser’s own client’s name (if Advertiser is an agency); (b) a registered d/b/a of Advertiser (if Advertiser is not an agency) or of Advertiser’s own client (if Advertiser is an agency), or (c) a domain registered to either of the foregoing; (2) a physical address registered to the same entity or d/b/a from subsection (1); and (3) an Advertiser unsubscribe link.
4.3 Social Campaigns. Amobee may provide execution and management of ad buys with access to Advertiser’s (or Advertiser’s own client’s social media account) (the “Social Account”). Advertiser shall provide (i) a list of target brands or keywords (used in initial data collection); (ii) Ad Creative; (iii) campaign flight dates and destinations (iv) tracking codes; and (v) access to the Social Account as administrator. Amobee shall not modify or post to the Social Account or contact fans or followers of the Social Account except as otherwise requested by Advertiser. Payable actions shall be tracked by the social media publisher unless otherwise stated on the Insertion Order. Advertiser represents and warrants that its social media marketing activities shall fully comply with all applicable guidelines, policies and special provisions posted by such social media publisher.
4.4 Ad Specifications. Advertiser acknowledges and agrees that the Ads will meet the specifications specified by Amobee in advance of Campaign launch.
4.5 License. Advertiser grants Amobee and its third-party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Ad Creative in connection with its obligations hereunder.
5. Fees; Calculations.
5.1Fees. On a monthly basis, Amobee will invoice Advertiser and Advertiser will pay Amobee the Fees set forth in the associated Insertion Order. Advertiser will pay all Fees within thirty (30) days of the date of invoice. On receipt of invoice Advertiser shall have seven days to query or dispute such invoice after which time the invoice shall be deemed to be accepted by Advertiser and no further query or dispute may be raised by Advertiser.
5.2Cancellation Fees. Amobee reserves the right to charge any and all costs incurred by Amobee in connection with a Creative Service Campaign or custom study where Advertiser terminates the Insertion Order, even when such costs were not separately listed on the Insertion Order.
5.3Payment Method. Advertiser will pay all Fees in the currency specified in the applicable Insertion Order by check or by wire transfer to an account specified in writing by Amobee. Advertiser shall also be responsible for and shall pay any and all applicable sales taxes, consumption taxes, VAT or GST pertaining to the Fees. Late payments will be subject to late fees at the rate of one and a half percent (1.5%) per month, or, if lower, the maximum rate allowed by applicable law. Advertiser agrees to pay any attorney fees and collection costs incurred by Amobee in collecting any past due amounts from Advertiser.
5.4Calculations. Amobee will be solely responsible for determining Fees and the sole arbiter in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed unless otherwise indicated in the Insertion Order. Invoicing shall not be deemed final until invoices are received by Advertiser. Numbers provided prior to final invoicing via online portal or otherwise are tentative and subject to adjustment.
6. Use of Amobee Data.
6.1By Advertiser. Advertiser acknowledges that, in the course of using the System, it may have access to information that is applicable to Amobee, such as the Targeting Criteria, and data about End Users (“Amobee Data”). Advertiser agrees to use Amobee Data solely in connection with this Agreement and to treat all Amobee Data as the Confidential Information of Amobee.
6.2By Amobee. Amobee may use and disclose data derived from Advertiser’s use of the System (a) as part of Amobee’s business operations, on an aggregate basis (absent Advertiser’s prior consent) such that any use or disclosure does not permit a third party to associate any particular data with Advertiser; and (b) if required by court order, law, or governmental agency. In addition, Amobee may use Amobee Data to operate, manage, maintain, and improve the System. Amobee shall provide to Advertiser upon request a list of Data Aggregators that may be used for a given Advertiser’s Campaign.
7. Term; Termination.
7.1Term. Unless terminated earlier or extended in accordance with this Section 7, this Agreement shall begin on the Effective Date and continue for the term set out in the Insertion Order (the “Term”).
7.2Suspension by Amobee. Amobee may suspend this Agreement without prior notice (a) if Advertiser fails to pay Fees invoiced by Amobee within forty-five (45) days following the payment due date; or (b) upon Amobee’s reasonable belief that Advertiser has breached any of its representations, warranties or covenants in Section 8.
7.3Termination By Amobee. Amobee may terminate this Agreement (a) in the event of Advertiser’s material breach of this Agreement or Advertiser’s insolvency upon forty-eight (48) hours’ notice to Advertiser if such breach or insolvency remains uncured after the expiration of such forty-eight (48) hours’ notice period; (b) for convenience, on thirty (30) days’ prior written notice to Advertiser; or (c) immediately upon Amobee’s notice to Advertiser of Amobee’s reasonable determination that Advertiser is likely cause injury to Amobee or otherwise reflect unfavorably on the reputation of Amobee. If this Agreement is terminated by Amobee due to Advertiser’s breach, Advertiser is required to pay Amobee all Fees due under this Agreement within ten (10) days of the effective date of such termination.
7.4Termination By Advertiser. Advertiser may terminate this Agreement in the event of Amobee’s material breach of this Agreement or Amobee’s insolvency, upon twenty-four (24) hours’ notice to Amobee if such breach or insolvency remains uncured after the expiration of such twenty-four (24) hours.
7.5Survival. Sections 1, 3.3, 3.4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive termination or expiration of this Agreement for any reason.
7.6Cancellation of Insertion Orders. Advertiser agrees that it has no right to cancel a Campaign on performance grounds if Amobee has not received the third-party reports which were requested prior to the commencement of such Campaign.
8. Representation, Warranties, and Covenants.
8.1Mutual Representations, Warranties and Covenants. Each Party hereto represents, warrants and covenants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms and conditions.
8.2Advertiser’s Representations, Warranties and Covenants. Advertiser further represents, warrants and covenants that (a) Advertiser has and will have any and all necessary rights to allow Amobee to deliver the Ads on Publisher Inventory; (b) no Ads placed by Advertiser will (i) infringe or misappropriate any third party’s Intellectual Property Rights; or (ii) breach any duty toward, or rights of, any third party, including rights of publicity or privacy; or (iii) be false, deceptive, misleading, unethical, defamatory, libelous, or threatening unlawful, harmful, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable; (c) Advertiser has substantiation for all claims made and shall fulfill all commitments set out in the Ad Creative; (d) Advertiser shall use collected End User data only for legal purposes; (e) if Advertiser collects End User medical condition data, Advertiser does so only with express consumer consent; (f) Advertiser is not targeting any Campaign to children age twelve or under; (g) Advertiser will not load computer programs onto a consumer computer without express consent and agrees that adware and spyware are prohibited; (h) Advertiser will comply with the IAB self-regulatory principles for online behavioral advertising; (i) Advertiser’s actions under this Agreement will comply with all applicable laws (including that Advertiser’s collection, use and storage of data shall comply with all applicable privacy laws); and (j) it will not use the System in a manner that reasonably could be expected to damage or cause injury to the System or otherwise reflect unfavorably on the reputation of Amobee. If Advertiser is an agency, it represents and warrants that it has the authority to bind its own client to the Insertion Order, and Advertiser and such client remain jointly and severally liable for all obligations under the Insertion Order.
9. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES. THE SYSTEM IS MADE AVAILABLE TO ADVERTISER “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM AMOBEE OR THROUGH OR FROM THIS AGREEMENT SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. Limitations of Liability.
10.1No Consequential Damages. SUBJECT TO SECTION 10.3, TO THE MAXIMUM EXTENT A LIMITATION OF DAMAGES OR LIABILITY IS PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2Liability Cap. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL AMOBEE’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH AMOBEE’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER TO AMOBEE UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. ADVERTISER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION OR BE FOREVER BARRED.
10.3Exceptions from Exclusions and Limitations. Nothing in this Agreement shall exclude or limit either Party’s liability for: (a) breaches of Section 12; (b) with regard to Advertiser, amounts owed under Section 5; (c) breaches of a Party’s indemnification obligations under Section 11 or any amounts paid or payable to third parties in connection with such obligations; or (d) in case of physical injury or health damages.
10.4Allocation of Risk. The Parties agree that (a) the mutual agreements made in this Section 10 reflect a reasonable allocation of risk; and (b) that each Party would not enter into this Agreement without these exclusions and limitations on liability and the exceptions set forth above.
11.1By Advertiser. Advertiser shall indemnify, defend and hold harmless Amobee and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Amobee Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Amobee Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) alleging any fact, which, if true, would constitute a breach by Advertiser of Section 8 or (b) Advertiser’s use of the System other than as permitted herein; provided, however, that in any such case Amobee will (i) provide Advertiser with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Advertiser of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Advertiser to assume and control the defense of such action upon Advertiser’s written notice to Amobee of Advertiser’s intention to indemnify; and (iii) upon Advertiser’s written request, and at no expense to Amobee or its affiliates, provide to Advertiser all available information and assistance reasonably necessary for Advertiser to defend such claim. Advertiser will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Amobee Party, without Amobee’s prior written consent, which will not unreasonably be withheld or delayed. Amobee shall have the right to participate in the defense with counsel of its choice at its own expense.
11.2By Amobee. Amobee shall indemnify, defend and hold harmless Advertiser and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Advertiser Parties”) against any Losses incurred by or imposed upon the Advertiser Parties or any one of them in connection with any Claim alleging (a) any fact, which, if true, would constitute a breach by Amobee of Section 8 or (b) that the System infringes any Intellectual Property Rights (provided that such infringement is not due in whole or part to modifications made by Advertiser); provided, however, that in any such case Advertiser will, (i) provide Amobee with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Amobee of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Amobee to assume and control the defense of such action upon Amobee’s written notice to Advertiser of Amobee’s intention to indemnify; and (iii) upon Amobee’s written request, and at no expense to Advertiser, provide to Amobee all available information and assistance reasonably necessary for Amobee to defend such claim. Amobee will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Advertiser Party, without Advertiser’s prior written consent, which will not unreasonably be withheld or delayed. Advertiser shall have the right to participate in the defense with counsel of its choice at its own expense.
12. Confidentiality. Each Party (a “Receiving Party”) understands that the other Party (a “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. If disclosure is made to the Receiving Party’s professional advisors, auditors or bankers this shall be done subject to Receiving Party procuring each such recipient’s agreement to keep such information confidential to the same extent as if such recipient were party to this agreement. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no violation of this Agreement by the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or regulatory or governmental order or requirement or any tax authority to which the Receiving Party is subject or submits, wherever situated, whether or not the requirement for information has the force of law, the Receiving Party shall to the extent legally permitted promptly notify the Disclosing Party in order to allow the Disclosing Party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other all of the Disclosing Party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.
13. Proprietary Rights
13.1 Subject to express permission from Amobee, nothing in this Agreement gives Advertiser a right to use any of Amobee’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
13.2 If Advertiser has been given express permission to use any of these brand features in a separate written agreement with Amobee, the use of such features shall be in accordance with that agreement and any applicable provisions.
13.3 Subject to express authorization in writing by Amobee, Advertiser agrees it will not use any trade mark, service mark, trade name, logo of Amobee in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
14.1Publicity. Any public announcement relating to the Agreement must fairly and accurately represent the Parties’ business relationship and must not conflict with this Agreement. Amobee may publicly refer to Advertiser (and Advertiser’s own client for the Campaigns) as a customer.
14.2Independent Contractors. It is the intention of Amobee and Advertiser that Amobee and Advertiser are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Amobee and Advertiser.
14.3Entire Agreement. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the Parties, oral or written, with respect to the subject matter hereof. In the event of conflict between these Terms and Conditions for Advertisers and the associated Insertion Order, the associated Insertion Order will prevail.
14.4Amendment; Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
14.5Governing Law and Jurisdiction. This Agreement will be governed by and interpreted (without regard to any conflict of laws principles or rules) in accordance with:
- the laws of England and Wales and subject to the exclusive jurisdiction of courts located in London (if a UK Amobee office originates the Insertion Order),
- the laws of Singapore and subject to the exclusive jurisdiction of courts located in Singapore (if a Singapore Amobee office originates the Insertion Order),
- the laws of Victoria and Australia and subject to the exclusive jurisdiction of courts located in Melbourne (if an Australian Amobee office originates the Insertion Order) or
- the laws of California and subject to the exclusive jurisdiction of courts located in Los Angeles (otherwise).
14.6Successors and Assigns. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning Party; provided that either Party may assign this Agreement without consent: (i) to any affiliated company if the standard of quality and compliance with this Agreement is guaranteed or (ii) in connection with the sale of all or substantially all its assets or other change of control transaction. This Agreement will be binding upon and will inure to the benefit of a Party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 14.6, including, without limitation, by operation of law, is void.
14.7Force Majeure. No Party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), terrorist act, embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such Party.
14.8Notices. All notices, requests, consents, and other communications under this Agreement will be in writing, and will be delivered (i) by hand, (ii) sent by reputable overnight courier service or express mail or (iii) sent by e-mail (with a copy sent by reputable overnight courier service or express mail), if to Amobee, at 10201 Wateridge Circle #400, San Diego, CA 92121, USA, or if to Advertiser, at the address indicated in the associated Insertion Order, or such other address as each Party specifies to the other Party in writing by notice given in accordance with this Section 14.8. Notices provided in accordance with this Section 14.8 will be deemed delivered: (a) immediately if delivered by hand or sent by e-mail; or (b) if sent by overnight courier service or express mail, upon delivery (as reported by the courier or postal service).
14.9Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.