iSOCRATES TERMS & CONDITIONS
This Agreement (“Agreement”), dated as of __________, 2018 (“Effective Date”) is entered into by and between ISOCRATES LLC, having an address at 433 Central Ave, Suite 300, Saint Petersburg, FL, U.S.A. 33701 (“ISOCRATES”) and COMPANY having an address at ____________________ (“Company”).
WHEREAS, Company is the owner and/or operator of the media publishing company, is the marketer, the advertising agency, and / or a supplier of services to publishers, marketers, and / or advertising agencies; and
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ISOCRATES and Company, intending to be legally bound, do hereby agree as follows:
All terms used in this Agreement have the meanings set forth below.
A.Understanding. Subject to the engagement of MSP / BPO services requiring operations support, data management, the placement of tags and / or monetization of inventory, Company hereby agrees to (i) permit ISOCRATES to place Tags on the Media Services in order to collect Data and (ii) appoint ISOCRATES for the sale of Advertisements to be displayed on the Inventory.
B.Insertion Orders. The parties may execute one or more Insertion Orders and / or Demand Agreements in connection with this Agreement from time to time to identify and set the terms for specific projects under this Agreement. Each Insertion Order and / or Demand Agreement shall reference this Agreement, be signed by both parties and shall be substantially in the form set forth on Exhibit A of the order form.
C.Cooperation. The parties shall make commercially reasonable efforts to work together to enable compatibility between their systems. In the event certain customizations are necessary to ensure that Advertisements accepted by the Company are properly served, Company agrees to reasonably cooperate with ISOCRATES in order to test, update and or modify the integration between the parties. Should Company fail to perform any of its obligations under this Agreement, ISOCRATES shall not be responsible for any delay or other consequences due to such failure.
D.Non-Circumvention. Company agrees that it will not, directly or indirectly, contact any Advertiser brought to the partnership by ISOCRATES without first obtaining agreement via written correspondence (i) whose Advertisements are displayed in the Inventory during the campaign flight for such Advertisements and for a period of ninety (90) days thereafter or (ii) with whom ISOCRATES is known by Company to be negotiating with to include such Advertiser’s Advertisements in the Inventory, to solicit advertising for the Media Services. If Company contracts with any Advertiser for Advertisements in violation of the foregoing, the parties shall negotiate in good faith the appropriate payment of fees to ISOCRATES comparable to those previously paid for such Advertisements to ISOCRATES. The foregoing shall not apply to the extent that Company has a documented and material pre-existing relationship with such Advertiser. For avoidance of doubt any Advertiser that Company has worked with in the past, or is found to have approached Company directly will not be in violation of this clause. Company reserves the right to optimize demand partners in the marketplace during the term of this agreement.
E.Inventory. If necessary, Company agrees to work in good faith with ISOCRATES to provide ISOCRATES with the ability to bid and acquire Inventory as reasonably requested by ISOCRATES. Company shall ensure that, except for portions of the Media Service clearly designated for user-generated content, no portion of the Media Service contains or is one click away from content that is defamatory, abusive, obscene, profane or offensive; infringes or violates another party's intellectual property rights (such as music, videos, photos or other materials without written authority from the owner of such materials to post on the Media Service); violates any party’s right of publicity or right of privacy; is threatening, harassing or that promotes racism, bigotry or hatred of any kind against any group or individual; promotes or encourages violence against a person or damage or destruction of property; is inaccurate, false or misleading in any way; is illegal or promotes any illegal activities; or contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
F.Privacy. Company shall ensure that (i) the Media Services comply with all applicable laws, rules and regulations, including but not limited to, making all consumer disclosures as required by best industry practices, (ii) the Media Services do not target children under the age of 13 and, based on the overall content of the Media Services, are not likely to attract children under the age of 13 as its primary audience, (iii) it shall comply with all principles and guidelines, including the Self-Regulatory Principles for Online Behavioral Advertising, administered by the Digital Advertising Alliance and (iv) the Media Services’ manner of presenting or identifying any so-called “native” or “sponsored” ads complies with all applicable laws, rules and regulations, including but not limited to, the Federal Trade Commission’s Enforcement Policy Statement on Deceptively Formatted Advertisements.
A.Sales of Advertisements. To the extent set forth on the ISOCRATES MSP / BPO Order Form and / or the Insertion Order, ISOCRATES shall use its commercially reasonable efforts to solicit and sell Advertisements for the Inventory.
B.Reporting. ISOCRATES shall make commercially reasonable efforts to provide Company with weekly reporting regarding the use of the Inventory and the amount of Revenue Share awarded to Company. The numbers reported by ISOCRATES shall be the controlling measurement for all purposes and shall be the basis for the fees due herein. Where possible ISOCRATES will assist Company staff in accessing daily reports. Additionally, use of the Inventory reports will provide Company with insights into the performance of Inventory within the ISOCRATES marketplace as compared to other participants of the marketplace.
C.Media Service. ISOCRATES agrees to comply with all Company advertising specifications that are provided by Company in writing to ISOCRATES prior to the sale of any Advertisements.
A.Fees. Montly MSP / BPO fees are due the first of each month in advance, unless otherwise specified in the MSP / BPO Order Form. For avoidance of doubt MSP / BPO work will not commence until the first month’s payment is received. If the project does not start on the first of the month the initial fee shall be the prorated monthly fee PLUS the next month’s fee. For the calculation of any revenue share related to MSP / BPO services, the Impressions verified by ISOCRATES shall be used for all reporting and payment purposes. ISOCRATES shall pay Company as set forth on the MSP / BPO Order Form or the Insertion Order. All amounts hereunder are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction. In the event that withholding taxes or any other similar taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, ISOCRATES may withhold such taxes.
B.Payment Liability. Monthly licence fees are due the first of each month in advance. Any revenue share invoices are calculated on a NET revenue basis and due net 30 day of receipt of invoice, unless otherwise specified. Net revenue is gross revenue less fees. ISOCRATES shall pay the applicable Revenue Share, via PayPal or Credit Card, at ISOCRATES’s option, subject to receipt of the Company Reports confirming monthly ISOCRATES measurements and fee calculation, unless stated otherwise in the signed Insertion Order. Email correspondence from Company will be sufficient to confirm ISOCRATES reports. Any third party vendor service negotiated by iSOCRATES on behalf of Company will be approved by Company. Direct use services will be billed to Company directly. Any shared third party vendor services managed by iSOCRATES and used by Company will be billed to Company each month as a transparent pass through cost. For example, shared services may include, but are not limited to, ad serving, data serving, viewability, brand safety, ad blocking, video player, among others. Revenue share calculations shall be net of fees.
C.Expenses. Each of Company and ISOCRATES will pay for all of its own expenses that arise under this Agreement.
A.Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year, unless stated otherwise in the MSP / BPO Order Form. After the expiration of the initial or any renewal term, this Agreement shall automatically renew for additional one (1) year periods. Either party may terminate this Agreement provided that the terminating party provides at least thirty (30) days advance written notice prior to the date of the renewal. ISOCRATES may terminate this agreement for any reason or no reason with thirty (30) days written notice. This Agreement or any individual Insertion Order shall terminate thirty (30) days after a party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth in this Agreement or such Insertion Order, unless such party cures such breach within said thirty (30) day period.
Below is MTXFrame sample code for evaluation purposes only:
Your team can use the following information and link to find the radio button that provides the drop down menu to install the PreBid.js.
Auction tag URL: MT_CompanyName Aardvark's
http://console.rtk.io/auctiontag/XXXX (Four digit test code to be provided asap)
Go to the URL
Click on Prebid.JS button
Follow the directions
C.Effect of Termination. Upon termination of this Agreement: (i) all rights granted in this Agreement by either party to the other party shall automatically terminate and be of no further force or effect; (ii) each party will cease using or displaying the intellectual property of the other party within a reasonable period of time; (iii) each party shall return or destroy all Confidential Information relating to the other party then in its possession, except as set forth in Section 6 below; and (iv) Company will be entitled to the payment of all unpaid amounts under Section 3 and the related Order Form earned as of the date of termination, provided such termination is not based upon Company’s breach of this Agreement.
D.Survival of Certain Provisions. Notwithstanding the foregoing, except as otherwise provided herein, the rights and responsibilities of the parties under Sections 5(B), 6, 7(B), 8 and 10-13 shall survive indefinitely.
A.Confidential Information. In connection with this Agreement, each party may disclose, or may learn of or have access to, certain confidential or proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, software, plans, financial information or customers. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
B.Obligations. Except as expressly permitted in this Agreement, each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish, copy or use any part of such Confidential Information, except as necessary to perform obligations and exercise rights in connection with this Agreement. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis, provided that, it shall be liable for the acts or omissions of any third party to which it provides Confidential Information. Upon the termination or expiration of this Agreement, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge archived information that is retained pursuant to its normal document retention practices or required to be maintained by applicable law if the obligations of this Section 9 continue to be strictly observed.
A.Representations and Warranties. Each party represents and warrants to the other party that: (i) it shall perform its obligations hereunder in a workmanlike and professional manner; (ii) it has sufficient expertise and experience to perform its obligations hereunder; (iii) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (iv) the execution of this Agreement and the performance of its obligations hereunder, do not and will not violate any agreement to which it is a party or by which it is bound; (v) it shall at all times be in compliance with all applicable laws, rules and regulations in connection with this Agreement; and (vi) it has not relied upon any projections or guaranties of sales in entering into this Agreement.
B.Intellectual Property. As between ISOCRATES and Company, ISOCRATES is the exclusive owner of all rights, title and interest in and to the ISOCRATES Technology (including any enhancements, modifications or improvements thereto or derivatives thereof) and any materials provided to Company by ISOCRATES through the ISOCRATES Technology. Any improvements, enhancements or modifications to the ISOCRATES Technology created, suggested or requested by Company, including any and all trademarks, patents, copyrights or trade secrets in connection therewith (collectively, “Improvements”), shall be automatically licensed perpetually, and without limitation or obligation, to ISOCRATES. Except as otherwise expressly set forth herein, no rights, license, title or interest to any of the foregoing or any other proprietary rights, intellectual property or Confidential Information, express or implied, are granted by ISOCRATES to Company under this Agreement.
Company shall place all Tags, including Passback tags, at no cost to ISOCRATES, on the Inventory and Media Service as instructed by ISOCRATES and shall remove such Tags immediately upon notice from ISOCRATES. Passbacks and Passback Tags shall be used at the sole discretion of ISOCRATES. Company hereby authorizes ISOCRATES to collect data in connection with the Tags as set forth herein. Company shall not interfere with the proper operation of the Tags. Company shall own all Data, except for User Volunteered Data (if any) which shall be owned by the respective Advertiser. Company hereby grants ISOCRATES a non-exclusive, worldwide, royalty-free, perpetual right and license to use the Performance Data and Site Data for any purpose, provided that, ISOCRATES shall only use Site Data in connection with a Insertion Order or in connection with the optimization and delivery of Advertisements to the Inventory. “Performance Data” is data collected via the Tags regarding a user’s interaction with the Media Services and/or in connection with the delivery of an Advertisement (e.g., number of impressions, interactions, and header information), but excluding Site Data. “Site Data” is any data that is (a) preexisting Company data used by ISOCRATES; (b) gathered during delivery of an Advertisement that identifies or allows identification of Company or the Media Service; or (c) entered by users on the Media Service other than User Volunteered Data. “User Volunteered Data” is personally identifiable information collected from individual users by Advertisers during delivery of an Advertisement where it is expressly disclosed to such individual users that such collection is solely on behalf of an Advertiser.
ISOCRATES shall have the right to identify Company as a Company with ISOCRATES, either on an individual basis or as part of a list of some or all of ISOCRATES’s Companys. Company agrees to allow ISOCRATES to use Company’s name and logo and Media Service for promotional purposes in connection with this Agreement.
A.ISOCRATES. ISOCRATES agrees to defend, indemnify and hold harmless Company, its subsidiaries, affiliates, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all claims, liabilities, damages, fines, penalties or costs of whatsoever nature, including reasonable attorney’s fees and expenses (collectively, “Losses”), to the extent arising out of any third party claims in connection with: (i) the violation of any intellectual property rights by the ISOCRATES Technology; (ii) the content of the Advertisements, to the extent ISOCRATES is indemnified by the Advertiser; or (iii) the violation by ISOCRATES of any law, rule or regulation.
B.Company. Company agrees to defend, indemnify and hold harmless ISOCRATES, its subsidiaries, affiliates, Advertisers, successors and assigns, and each of their officers, directors, agents, contractors, subcontractors and employees, against and from any and all Losses to the extent arising out of any third party claims in connection with: (i) the Media Service; (ii) unauthorized use of the Advertisements; or (iii) the violation by Company of Section 2(F).
C.Procedure. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party's obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party's prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
Except as set forth in this agreement, the ISOCRATES technology and services are provided to Company “as is” and ISOCRATES expressly disclaims all warranties, express, implied or statutory. ISOCRATES does not warrant that the ISOCRATES technology shall operate completely error-free or without interruption. ISOCRATES shall not be liable for any decisions made by Company through use of the ISOCRATES technology and services. except for obligations of indemnification, a breach of confidentiality or violation of the other party’s intellectual property rights, (i) in no event will either party be liable to the other party for any special, indirect, incidental or consequential damages arising out of or in connection with this agreement; and (ii) ISOCRATES’s cumulative liability to client will not exceed the amounts paid under this agreement during the most recent twelve (12) month period.
A.Independent Contractors. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each party shall ensure the timely disposition of all of its respective employee matters in connection with their organization, including but not limited to, employee benefits, insurance, withholdings, taxes and similarly related employee-related matters.
B.Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.
C.Assignment. Neither party may assign this Agreement to any other entity without the prior written consent of the other party, whether by operation of law or otherwise, except in connection with a merger, change of control or sale of substantially all of its assets to a party that is not a direct competitor of the other party. This Agreement shall inure to the benefit of the parties’ permitted successors and assigns.
D.Execution; Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.
E.Entire Agreement. This Agreement sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by both parties.
F.Notice. Any official notice given pursuant to this Agreement shall be sent to the other party at the address stated in the opening paragraph of this Agreement by: (i) certified mail return receipt requested, (ii) overnight courier or (iii) confirmed facsimile or electronic mail followed by a hard copy by one of the prior methods.
G.Force Majeure. Neither party shall be in breach of this Agreement or responsible for damages caused by delay or failure to perform, in full or in part, its obligations hereunder, provided that there is due diligence in attempted performance under the circumstances and that such delay or failure is due to circumstances substantially beyond the control of the party to be charged, including act of God, failure of telecommunications systems, strikes, government sanctioned embargo, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier.
H.Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Connecticut and each party submits to exclusive jurisdiction and venue in the courts located in Connecticut.