“AVServer” means AniView’s Video Ad Server introducing various functionalities, including, targeting and reporting.
“Video Hosting” means storing and/or distributing data through AniView’s licensed servers.
Within 30 days after the end of each calendar month, Customer will remit any fees owed to AniView for such calendar month. Invoices will be based solely on AniView’s numbers and no other measurements or statistics of any kind will be accepted or have any effect hereunder.
Terms and Conditions
With respect to the provision of any of the services listed above under the Platform Services, the Parties agree to comply with the terms and conditions set forth in Exhibit A attached hereto (“Platform Terms”), which is incorporated herein by reference (the IO and the Platform Terms shall be collectively referred to as the “Agreement”). In the event of a conflict between this IO and the Platform Terms, the IO shall govern.
Without derogating from the forgoing, with respect to the provision of Video Hosting, the Parties agree to comply with the terms and conditions set forth in Exhibit C attached hereto (“Hosting Terms”), which is incorporated herein by reference (the IO, the Hosting Terms and the Platform Terms shall be collectively referred to as the “Agreement”). In the event of a conflict between this IO and the Hosting Terms, the IO shall govern. In the event of a conflict between the Platform Terms and the Hosting Terms, the Hosting Terms shall govern.
Without derogating from the forgoing, with respect to the provision of Content Management System, the Parties agree to comply with the terms and conditions set forth in Exhibit D attached hereto (“CMS Terms”), which is incorporated herein by reference (the IO, the CMS Terms and the Platform Terms shall be collectively referred to as the “Agreement”). In the event of a conflict between this IO and the CMS Terms, the IO shall govern. In the event of a conflict between the Platform Terms and the CMS Terms, the CMS Terms shall govern. Notwithstanding anything to the contrary, the Agreement shall be effective for the duration of the minimum commitment period stated in the “Service Details and Pricing” section, and shall continue to be effective until Customer terminates the Agreement, with or without reason, by providing AniView with a 2 months prior written notice.
WHEREAS, AniView is the developer and provider of an advertising platform to serve content and advertisements on websites and other Internet-accessible destinations (the “Platform”). Through the Platform, AniView offers certain services developed by or licensed to AniView, including among others the: (i) AVServer, (ii) AVPlayer, and (iii) Video Hosting (CDN) (each, a “Service” and collectively, the “Services”). The Services are made available for its customers to use on a Software-as-a-Service (“SaaS”) in accordance with the terms stated herein (“Platform Terms”); and
WHEREAS, Customer wishes to subscribe to access and use those certain Services as specified in AniView’s standard order form (“Order”) accessed by the Customer online through a designated portal (the “Program”) on a SaaS basis; and AniView wishes to provide a subscription to the Program and the Services to the Customer, all subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1.1 AGREEMENT. These Platform Terms, all Orders executed by the Parties, and all schedules and documents referenced herein shall be collectively referred to as the “Agreement”.
1.2 PROGRAM. Subject to the terms and conditions of this Agreement, AniView hereby grants Customer a non-exclusive, non-transferable right to access and use the Program and the selected Services, during the Term (as defined below), subject to Customer’s compliance with any and all of the terms and conditions set forth in this Agreement, including without limitation, the full payment of the undisputed fees set forth in the Agreement.
1.3 DOCUMENTATION. AniView may make available certain Documentation to Customer to be used by Customer solely in connection with Customer’s use of the Program during the Term. The Documentation shall be considered part of AniView’s Confidential Information (as defined below). Unless context otherwise requires, the term “Program” shall include the Documentation. “Documentation” means AniView’s standard user documentation, whether in hard copy, or in any electronic form or other media (generally made available by AniView to its Program customers), describing the use, features and operation of the Program.
2. SERVICES. In consideration of the full payment of the services fee(s) set forth in the Agreement (the “Services Fee”), AniView shall provide Customer with the Services selected in the Agreement. Customer hereby agrees to cooperate with AniView to enable the provision of the Services, and comply with instructions provided by AniView to Customer in connection with AniView’s provision of Services hereunder; and acknowledges that the provision of certain Services by AniView may be dependent on Customer providing the foregoing cooperation.
3. USE OF CUSTOMER ACCOUNT. A Customer account will be created in connection with Customer’s use of the Program (the “Account”), to be accessed and/or used solely by employees, agents, clients, and independent contractors of the Customer who are explicitly authorized by Customer to use the Program and for whom subscriptions to a Program have been purchased (each a “Permitted User”). Customer acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify AniView in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account or the Program. Customer shall ensure that the Permitted Users comply with the terms of this Agreement and shall be solely responsible for any breach of this Agreement by a Permitted User.
4. RESTRICTIONS ON USE. Customer shall only access the Program via the AniView designated web portal or API and in connection with Customer’s Account. Customer must not, and shall not allow any Permitted User or any other third party to: (i) circumvent, disable or otherwise interfere with security-related features of the Program or features that enforce limitations on use of the Program; (ii) violate or abuse password protections governing access to the Program; (iii) allow any third party to use the Program except as permitted herein; (iv) sell, rent, lease, license or timeshare the Program or use it in any service bureau arrangement; (v) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the Program or any components thereof; (vi) use the Program to develop a competing service or product; (vii) use any automated means to access the Program; (viii) interfere or attempt to interfere with the integrity or proper working of the Program; (ix) access, store, distribute, or transmit during the course of its use of the Services any Malicious Code or unlawful, threatening, obscene or infringing material; (x) use the Program and/or the Services in a manner that would violate applicable data privacy laws or for any other unlawful purpose; and/or (xi) use the Program in any other unlawful manner or in breach of this Agreement. For the purposes of this Agreement, “Malicious Code” means software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system. Customer’s breach of Sections 3-4 shall be deemed a material breach of this Agreement. If AniView believes that Customer is using the Services in a manner that may cause harm to AniView or any third party, then AniView may suspend Customer’s access to and use of the Services until such time as AniView believes the threat of harm, or actual harm, has passed.
5.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party hereto represents and warrants 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/or any other third party on its behalf as applicable, 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; (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 and (d) such Party shall conduct its business and perform hereunder in compliance with all applicable laws, rules and regulations.
5.2 CUSTOMER’S REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (i) it shall take best commercial efforts to ensure that any content published or submitted by Customer, or on its behalf (including by any Permitted Users), to the Program or Services (“Customer Content”) does not include or link to: (a) sexually explicit, obscene, harassing, defamatory, illegal or misleading; (b) violating or infringing upon the rights of any third party, including intellectual property, privacy or publicity rights; (ii) it owns or has the necessary licenses, rights, consents and permission to publish/upload the Customer Content to the Program and/or Services; (iii) it shall be solely responsible for any Customer Content it uploads to the Program and/or Services (“Objectionable Content”); and (iv) it shall ensure that the Services are not deployed or served in connection with or adjacent to any Objectionable Content.
5.3 ANIVIEW’S REPRESENTATIONS AND WARRANTIES. AniView represents and warrants that: (a) it is the sole owner of the Program and Services or has secured all necessary licenses, consents and authorizations for operation of the Program and Services; (b) the underlying technology of the Program and Services does not infringe any third party intellectual property. AniView is not responsible, in any way, for any third party content submitted or made available via the Services.
7. RIGHTS AND TITLE. The Program is licensed and not sold to Customer. All Intellectual Property Rights and all other rights, title and interest of any nature in and to the Program, the Services and any related content and Documentation provided or made available by AniView hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) thereof, are and shall remain the exclusive property of AniView and its licensors. AniView and its licensors reserve any and all rights not expressly granted in this Agreement. Customer retains all of its ownership and Intellectual Property Rights in its Customer Content. For the purposes of the Agreement, “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; and (vi) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
8.1 SERVICES FEE. Customer’s access to and use of the Program and the selected Services is subject to Customer’s payment of the applicable Services Fees for the applicable subscription period in a timely manner in accordance with the terms of this Agreement. Service Fees are not refundable. Customer shall have no right to withhold or set off any amount against amounts owed for alleged defects in any Program or any other demand or claim against Aniview.
8.2 PAYMENT TERMS. All payments hereunder shall be in accordance with terms stated in the Agreement. Any undisputed amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
8.3 TAXES. All fees payable to AniView are exclusive of applicable taxes (including without limitation VAT), withholdings or duties, and the fees set forth in the Agreement are the net amounts which shall be paid by Customer hereunder. All taxes, withholdings and duties of any kind payable with respect to Customer’s subscription to the Program or the purchase of Services arising out of or in connection with this Agreement, other than taxes based on AniView’s net income, shall be borne and paid by Customer.
9. TERM AND TERMINATION.
9.1 TERM. This Agreement shall be effective as of the Effective Date, and shall continue until either Party terminates the Agreement, with or without reason (“Term”), by providing the other Party with a 72 hours prior written notice, except if the Order provides otherwise.
9.2 GENERAL. Upon termination of this Agreement, Customer shall immediately discontinue all access and use of the Program and shall promptly, but in any event within three (3) business days, permanently delete all copies of the Documentation in Customer’s or any of its representatives’ possession or control. Nothing herein shall derogate from Customer’s payment liabilities incurred prior to termination of this Agreement.
9.3 SURVIVAL. This Section 9 and Sections 4 (Restrictions on Use), 7 (Rights and Title), 8 (Consideration), 10 (Warranty Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 13 (Confidential Information), 14 (Jurisdiction and Governing Law), and 15 (Miscellaneous) shall survive termination of this Agreement.
10. WARRANTY DISCLAIMER. BOTH PARTIES ACKNOWLEDGE AND UNDERSTAND THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN: (I) THE PROGRAM, SERVICES AND CUSTOMER CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES WHATSOEVER; AND (II) ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, NON-INTERFERENCE, ACCURACY, RELIABILITY AND QUALITY OF THE PROGRAM, THE SERVICES AND THE CUSTOMER CONTENT ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND BOTH PARTIES HEREBY EXPRESSLY WAIVES ALL SUCH WARRANTIES.
11. LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 11, EACH PARTY FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), LOSS OF PROFITS, OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING THE ABOVE, EXCEPT FOR THE BREACH OF EITHER PARTY’S OBLIGATIONS UNDER SECTION 12 AND/OR SECTION 13, IF EITHER PARTY IS FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING, EACH PARTY’S AGGREGATED LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY IS LIMITED TO THE CONSIDERATION CUSTOMER ACTUALLY PAID TO ANIVIEW HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT.
12.1 Each Party (the “Indemnifying Party”) hereby agrees to defend and indemnify the other Party and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (the “Indemnified Party”) against any damages awarded against the Indemnified Party by a court of competent jurisdiction, or paid in settlement or otherwise, in connection with a third party claim, suit or proceeding arising out, of or related to the Indemnifying Party’s breach of any of its representations or warranties set forth herein
12.2 Without derogating from the foregoing defense and indemnification obligation, if AniView believes that the Program, or any part thereof, may infringe, then AniView may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Program; (ii) replace or modify the allegedly infringing part of the Program so that it becomes non-infringing while giving substantially equivalent performance; or (iii) terminate this Agreement immediately, and in such event Customer shall receive a prorated refund of any fees paid for the unused portion of the applicable subscription period. This Section 12.2 states AniView’s entire liability and Customer’s exclusive remedy for any claims of infringement.
12.3 GENERAL. The defense and indemnification obligations of the Indemnifying Party under this section are subject to: (i) the Indemnifying Party being given prompt written notice of the claim; (ii) the Indemnifying Party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the Indemnified Party providing cooperation and assistance, at the Indemnifying Party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the Indemnifying Party’s defense of or response to such claim; except if there is any conflict of interest between the Parties or the Indemnifying Party has failed to defend such claims, in such event the Indemnified Party shall have the right to appoint their own legal counsel, at the Indemnifying Party’s expense.
13. CONFIDENTIAL INFORMATION. Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party. Neither party shall use or disclose the Confidential Information of the other party except as expressly permitted under this Agreement or by applicable law. Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documents: (i) was already know to the receiving party prior to the disclosure; (ii) is independently developed by or for receiving party without reference to or use of the Confidential Information; or (ii) which at the time of disclosure by the disclosing party is generally available to the public or thereafter becomes generally available to the public other than through a breach of any obligation under this Agreement caused by an act or omission on the part of the receiving party. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing party. The terms of this Agreement are deemed AniView’s Confidential Information, however, Customer may disclose the terms herein to its advisers, subject to a confidentiality undertaking similar to the above.
14. JURISDICTION AND GOVERNING LAW.
14.1 If the Agreement was entered between Customer and Aniview Inc – This Agreement shall be governed by and construed under the laws of the State of New York without reference to principles and laws relating to the conflict of laws. The competent federal or state court of the Southern District of New York, New York, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement.
14.2 If the Agreement was entered between Customer and Aniview Ltd – This Agreement shall be governed by and construed under the laws of the State of Israel without reference to principles and laws relating to the conflict of laws. The competent court of the District of Tel Aviv, Israel, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement.
15. MISCELLANEOUS. Each exhibit that is attached hereto is incorporated herein by this reference. Any purchase order entered into between the Parties shall be deemed to incorporate the terms of this Agreement. This Agreement shall constitute the full Agreement between the Parties with respect to its subject matter and shall supersede any and all prior agreements and understandings relating thereto. No change or addition of or to any provision of this Agreement shall be binding unless in writing and executed by or on behalf of both Parties by a duly authorized representative. Except to its successor in the event of a merger or sale of all or substantially all of a party’s assets or a change in control effected by a sale of a Party’s voting securities, this Agreement and any rights or obligations hereunder may not be transferred or assigned by either Party without the prior written consent of the other Party. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns, and the agreements and undertakings contained herein shall be deemed to be made by and be binding upon the foregoing. If any of the terms contained in this Agreement shall, for any reason, be held to be void or unenforceable, it shall not affect the validity or enforceability of any other term in this Agreement. The failure of either party to enforce at any time any of the provi¬sions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either Party to enforce each such provision thereafter. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. This Agreement may be executed in facsimile counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement. Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing, by fax, email or mail and shall be sent to the address for each Party set forth on the first page of this Agreement, or at such other address as shall be given by either Party to the other in writing. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by a facsimile or an email followed by a written or electronic confirmation; (b) two (2) days after posting when sent via an express commercial courier; or (c) five (5) days after posting when sent via certified mail.
Marketplace additional terms
Subject to the Terms and Conditions, within 60 days after the end of each calendar month, AniView will remit the Net Revenue Share (as defined below) to Publisher for such calendar month. “Net Revenue” means the amount actually received by AniView from third-party Advertisers as reported on the Advertisers’ dashboard at the end of each month, less any taxes AniView is required to collect, and less any charge-backs, refunds and third party fees. Publisher will receive as payment a percentage of the Net Revenue or an agreed floor price from the Net Revenue for Ads placed on Sites hereunder, based on the ad impression levels of the preceding month set forth in the table Above (“Net Revenue Share”).
Terms and Conditions
The Parties agree to comply with the terms of the AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 currently available at http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf (“4A Terms”), as hereby amended by Exhibit B attached hereto (the “Marketplace Terms”), which is incorporated herein by reference (the IO and the Marketplace Terms shall be collectively referred to as the “Agreement”). In the event of a conflict between this IO and the Marketplace Terms, the IO shall govern. In the event of a conflict between this Marketplace Terms and the 4A Terms, the terms of the Marketplace Terms will control. Capitalized terms used but not defined in the Marketplace Terms have the meanings ascribed to them in the 4A Terms.