Innovid Master Services Agreement
This Innovid Master Services Agreement (the “Agreement”) governs the terms and conditions under which the entity entering into this Agreement (“Customer” or “You”) may use and access the Services offered by Innovid, Inc. (“Innovid”), which are further described below. Please read this Agreement carefully. By executing a statement of work (“SOW”) or an insertion order or other ordering document (“IO”) that references this Agreement, and/or by otherwise indicating acceptance of this Agreement, You agree to be bound by this Agreement. If You do not agree to all the terms and conditions of this Agreement, You will not have any right to use the Services. Innovid 's acceptance is expressly conditioned upon Your assent to all the terms and conditions of this Agreement. If this Agreement is considered an offer by Innovid, acceptance is expressly limited to the terms and conditions contained herein. In the event of any conflict between an SOW or IO and this Agreement, the terms of this Agreement shall prevail.
1.1. “Ad” means a video advertisement or other online advertisement created, measured or served through use of the Services.
1.2 "Account" means a user account used by Customer in connection with Innovid’s online user interface.
1.3 “Advertiser” means an individual or entity whose products or services are advertised in the Ad, or such individual or entity’s agency or representative.
1.4 "Affiliate" means an entity that, directly or indirectly, is Controlled by, or is under common Control with, a party. For the purposes of this definition, "Control" means (a) direct or indirect control of at least 50% of the voting rights required to elect a majority of its directors, (b) the power directly or indirectly (i) to elect a majority of its directors or (ii) to cause the direction of its management, whether through share ownership, contract or otherwise, or (c) the direct or indirect ownership or control of all or substantially all of its assets reasonably required for the performance of this Agreement.
1.5 "Content" means any and all materials selected, uploaded, submitted or provided to Innovid by or on behalf of Customer, including, without limitation, images, videos, links, advertising materials, logos, graphics, text, music and audio, and any content to which the uploaded material is linked to.
1.6 “Documentation” means all specifications, user manuals, and other technical documentation relating to the Services.
1.7 “Integrated Vendor” means a third party service provider that Innovid has integrated with the Services in order to enable the possibility of Integrated Vendor Services to be provided to Customer.
1.8 “Integrated Vendor Services” means services provided by an Integrated Vendor through an integration with Innovid.
1.9 “iRoll Code” means code provided by Innovid to Customer in order to display or measure the Ads on Media.
1.10 "Impression" means each individual call to servers used by Innovid to return an Ad to the Media and/or to track or measure an Ad.
1.11 “Innovid Technology” means the Service, the Documentation, and any and all of Innovid’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information utilized by Innovid or made available to Customer by Innovid in providing the Services, together with all Intellectual Property Rights therein.
1.12 “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.13 “Media” means any website, mobile website, mobile application, connected TV device or other media, device or platform that is owned or operated by Customer, or on which Customer is otherwise authorized to sell, optimize, manage, display or measure advertising. If the Media is owned and operated by a third party, such third party is referred to as a “Publisher”.
1.14 “Reports” means the reports provided by Innovid to Customer that are generated from the Services regarding the performance of the Ads, whether provided via manual or automated means.
1.15 “Reseller Arrangement” means the reseller arrangement described in this Agreement.
1.16 “Services” means Innovid’s proprietary services for: (i) designing, creating and serving Ads (each such Ad, an “iRoll”), which may enable end users to engage with Ads in real time via roll-overs and/or click-throughs; (ii) the Reports and the iRoll Code; and (iii) such set-up and production work with respect to the Ads as may be agreed upon by the parties from time to time in a mutually executed IO, SOW or other writing (email sufficing).
1.17 “Trademarks” means the logos, servicemarks and trademarks of a party.
2. Innovid and Customer Obligations.
2.1. Innovid Obligations. Innovid shall:
2.1.1. Provide Ad creative & development services to Customer as set forth in a mutually executed IO or SOW or as otherwise may be agreed upon by the parties from time to time in writing (email sufficing); and
2.1.2. Provide Ad creative templates, storyboards, answers to frequently asked questions, case studies, production specifications and support for Customer to utilize when making contact with prospective Advertisers.
2.2. Customer Obligations. Customer Shall:
2.2.1. Acquire the necessary rights to grant to Innovid the licenses as described in this Agreement;
2.2.2. Pay Innovid for each Impression and for all other applicable charges in connection with the Services in accordance with the fee schedule set forth in any IO or SOW that is executed by the parties (the “Fees”) and in accordance with the payment terms of this Agreement, except in the event of a Direct Advertiser Payment Arrangement as described below; and
2.2.3. Use Innovid’s Trademarks in all relevant sales and marketing materials, and mention the Innovid brand as the technology platform behind the iRoll units using the phrase "Powered by Innovid" in all iRoll-related sales slides in sales decks and RFPs.
3. License; Restrictions; Trademark Usage; Ownership; Client Agreements.
3.1. License. Subject to the terms of this Agreement, during the Term, Innovid grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable (except to Advertisers as contemplated in this Agreement), limited license to access and use the Services solely in accordance with the Documentation for the purpose of enabling the display and/or measurement of Ads on Media.
3.2. Restrictions. Customer shall not: (i) sell, rent, lease, sublicense (except to Advertisers as contemplated in this Agreement) or otherwise make the Services or any portions or copies thereof available to any third parties; (ii) modify, copy, translate, reverse engineer, decompile, create derivative works based upon, disassemble, or attempt to decipher any source code of, the Services or any portions thereof; (iii) alter, destroy or otherwise remove any proprietary notices displayed or embedded within the Services; (iv) interfere with or disrupt the Services or any security mechanisms deployed by Innovid in connection therewith; or (v) use the Services for any purpose not expressly permitted in this Agreement, including but not limited to performing comparisons or other “benchmarking” activities, either alone or in connection with any software. Customer shall keep its Account username and password secure and shall be solely responsible for all activity occurring under its Account.
3.3. Trademark Usage. Each party (the “Granting Party”) grants to the other party a limited, non-transferable, non-exclusive, non-sub-licensable, worldwide, royalty-free right and license during the Term to use and reproduce the Granting Party’s Trademarks to market and promote the Services and the Reseller Arrangement herein during the Term. If Customer is the owner or operator of the Media, Innovid may disclose to existing and prospective customers, advertisers and agencies who may be interested in placing advertising on the Media that Customer is a PubPay Partner, and may use Customer’s Trademarks in connection with marketing materials, documents and presentations in order to market and promote the Services to such entities. For purposes hereof, “PubPay Partner” means an entity that has a direct contractual relationship with Innovid that addresses the fees to be paid to Innovid in connection with the Services. All use of the Granting Party’s Trademarks shall inure to the benefit of the Granting Party, and shall be in accordance with the Granting Party’s trademark usage guidelines provided to the other Party from time to time in advance and in writing.
3.4. Client Agreements. Customer will enter into an agreement for the Services directly with each Advertiser (each, an “Client Agreement”). In no event may Customer enter into a Client Agreement that establishes an expectation, right or obligation that Innovid, whether directly or indirectly, will provide services, training, customer support, particular service levels or technical support to any other person or entity without the prior written approval of Innovid. Customer will be solely responsible for setting the fees for the Services provided to Advertisers, and for invoicing and collecting payment from such Advertisers, except in the event of a Direct Advertiser Payment Arrangement as described below.
4. Ownership. The Innovid Technology and all Intellectual Property Rights therein are the exclusive property of Innovid or its suppliers. Customer hereby assigns to Innovid any suggestions, ideas, enhancement requests, feedback or recommendations provided by Customer related to the Innovid Technology. Except for the license expressly granted to Customer in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Innovid Technology or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Innovid Technology. All rights not expressly granted to Customer in this Agreement are reserved to Innovid.
5. Integrated Vendors; Content.
5.2. Content. Customer shall be responsible for providing the Content to Innovid in accordance with Innovid’s specifications and guidelines. Customer retains any and all Intellectual Property Rights that it holds in the Content. Customer hereby grants Innovid a worldwide, royalty-free, sublicenseable license to use, reproduce, modify and re-format for technical purposes, distribute, publicly perform, publicly display, digitally perform and measure the performance of the Ads and the Content for the purpose of performing the Services on Media designated by Customer, and for marketing and promoting the Services. Customer is solely responsible for obtaining all rights, approvals, licenses, consents, releases and permissions necessary to: (i) upload, submit, select and/or provide Content to Innovid and/or (ii) cause any Ads to be served or measured by Innovid. Innovid is not responsible for reviewing the Content or Ads.
5.3. Local Law. Customer acknowledges its responsibility to ensure that its use of the Services is permitted under the laws of its jurisdiction(s) and the jurisdictions in which the Services are utilized, and agrees to indemnify and hold Innovid harmless if Customer’s use of the Services is in violation of local law.
6.1. Fees. Customer shall pay the fees set forth in the applicable IO or SOW (the “Fees”). Innovid shall provide to Customer monthly invoices where monthly Fees have been incurred (provided that if Innovid has agreed to bill Customer for Integrated Vendor Services, Innovid may issue such invoices only after Innovid has received an applicable invoice from the applicable Integrated Vendor). All payment obligations are non-cancellable and all amounts paid are nonrefundable. The Impressions counted by the ad server utilized by Innovid shall be used as the basis for calculating the amounts owed with respect all per-Impression Fees. If there is a discrepancy exceeding five percent (5%) between the number of Impressions counted by Customer or its third party ad server, and the number of Impressions counted by Innovid or its third party ad server, then upon Customer’s request, the parties will in good faith attempt to resolve such discrepancy by, among other things, exchanging any data or other information relevant to the disputed amounts of Impressions. Notwithstanding the foregoing, Customer shall pay any amounts that are not disputed in good faith in accordance with this Section. All amounts payable to Innovid under this Agreement will be made without the right of setoff or counterclaim, and without deduction or withholding.
6.2. Payment Responsibility. Except in instances in which Innovid has entered into a contract or insertion order directly with the Advertiser stating that such Advertiser will pay the Fees due under this Agreement to Innovid directly with respect to one or more advertising campaigns (a “Direct Advertiser Payment Arrangement”), Customer will be solely responsible for paying the Fees due under this Agreement to Innovid.
6.3. Payment Timing. Except to the extent mutually agreed by the parties in writing (with email being sufficient) with respect to specific set-up and development Fees to be charged following the conclusion of a campaign, Customer shall pay the amounts due pursuant to Innovid’s invoices within thirty (30) days of Customer’s receipt of each such invoice. Any invoice-related dispute with respect to which Customer does not notify Innovid in writing within fourteen (14) days of Customer’s receipt of the applicable invoice shall be deemed waived.
6.4. Taxes; Payment Procedure. All amounts payable hereunder exclude all applicable sales, use and other taxes. Customer will be responsible for payment of all such taxes (other than taxes based on Innovid’s net income), and any related penalties and interest arising from the non-payment thereof. Amounts due under this Agreement and not paid by their due date shall incur interest of one and a half percent (1.5%) or the maximum allowed by law, whichever is less, and Customer shall be responsible for the reasonable collection costs (including without limitation attorneys’ fees and collection agency fees) incurred by Innovid in its efforts to collect such overdue amounts. Innovid shall be entitled, in its sole discretion, to withhold performance and discontinue provision of the Services until all amounts due are paid in full or to turn Customer over for collection to a third party agency.
7. Term and Termination.
7.1. Term. Unless terminated earlier as permitted herein, the initial term of this Agreement shall be for a period of one (1) year from the Effective Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party notifies the other in writing at least thirty (30) days prior to the end of any Initial Term or Renewal Term that it does not wish to renew this Agreement. At any time during any Renewal Term, either party may terminate the Agreement for convenience upon thirty (30) days prior written notice to the other party. In addition, this Agreement may be terminated by:
22.214.171.124.either party, immediately upon written notice, in the event that the other party materially breaches this Agreement and such breach is not cured within fourteen (14) days of written notice thereof; or
126.96.36.199.either party, immediately upon written notice, if the other party becomes bankrupt, insolvent, fails to pay its debts as they become due, or otherwise ceases to conduct business in the ordinary course.
7.2. Effect of Termination; Survival. Immediately upon termination, Customer will cease using the Services, the Innovid Trademarks and the iRoll Code (except to the extent that existing campaigns have not been completed as of the termination date; in such case Customer may continue to use the Services and iRoll Code until such campaigns have been completed, and shall pay Innovid with respect to such campaigns in accordance with the terms of this Agreement notwithstanding such termination). Impressions occurring post-termination as a result of failure to cease using the iRoll Code will be payable in accordance with the terms of this Agreement notwithstanding termination. Sections 1, 3.2, 4, 5.1, 5.3, 6 (to the extent of outstanding payment obligations), 7.2 and 9 through 12 shall survive termination or expiration of this Agreement.
9. Indemnification. Each party (the “Indemnifying Party”) will indemnify and hold the other party and its officers, directors, agents, Affiliates and employees (collectively, the “Indemnified Party”) harmless from and against any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) against the Indemnified Party (collectively, “Claims”) arising out of or related to a breach by the Indemnifying Party of its representations and warranties under this Agreement. Customer will defend, indemnify, and hold harmless Innovid, its directors, officers, Affiliates, employees and agents harmless from and against any and all Claims arising out of or related to the Ads, the Content, the Media and the content contained in the foregoing. The foregoing indemnification obligations are conditioned on the Indemnified Party; (i) giving the Indemnifying Party notice of the relevant claim, (ii) reasonably cooperating with the Indemnifying Party at Indemnifying Party's expense, in the defense of such claim, and (iii) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense. In the event that the Indemnifying Party fails to defend and/or indemnify the Indemnified Party, the Indemnified Party has the right to defend or settle any claim on its own behalf though counsel of its own choice, and be fully reimbursed by the Indemnifying Party for all costs and expenses of such defense.
10. Disclaimer; Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. INNOVID DOES NOT GUARANTEE ANY OUTPUT OR RESULTS OF ANY OF THE SERVICES AND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. INNOVID SHALL NOT BE LIABLE FOR ANY MEDIA ON WHICH THE ADS APPEAR, NOR FOR THE CONTENT OF THE ADS. UNDER NO CIRCUMSTANCES SHALL INNOVID BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY EVEN IF INNOVID HAS BEEN OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, NOR FOR: (II) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID TO INNOVID UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FROM THE DATE IN WHICH THE CLAIM AROSE. THE PARTIES WAIVE ANY RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP OF PARTIES HEREUNDER.
11. Confidentiality. The parties acknowledge that, in the course of their dealings hereunder, each may receive (“Recipient”) or otherwise become familiar with information about the other (“Discloser”), including but without limitation information about Discloser’s technology, client order information, financial information, software, product roadmaps, business activities and operations, trade secrets, third party business relationships, and all other information disclosed or made available by Discloser to Recipient that is marked “confidential” or “proprietary” or that should otherwise be reasonably understood to be confidential or proprietary (the “Confidential Information”). Customer hereby acknowledges and agrees that the Fees and information regarding the operation of the Services constitute Confidential Information of Innovid and that Innovid may disclose Confidential Information of Customer to Integrated Vendor(s) selected by Customer as permitted above. Recipient hereby agrees to take reasonable measures to maintain the confidentiality and secrecy of the Confidential Information of Discloser and to avoid its disclosure. Recipient agrees to limit access to the Confidential Information to those of its authorized employees, advisors, subcontractors, vendors, agents and representatives (collectively, “Representatives”) who have a need to know solely in connection with Recipient’s performance or receipt of the Services contemplated by this Agreement or in connection with Recipient’s enforcement of its rights hereunder, provided that such Representatives are, by reason of written agreement or operation of law, bound by confidentiality restrictions consistent with those contained in this Section with respect to such information. Recipient will not attempt to reverse engineer the design or function of any of the Confidential Information of Discloser. Recipient shall have no obligation with respect to information which (i) was rightfully in possession of or known to Recipient without any obligation of confidentiality prior to receiving it from Discloser; (ii) is or becomes publicly available without breach of this Agreement; (iii) is rightfully obtained by Recipient from a source other than Discloser without any obligation of confidentiality; (iv) is independently developed by Recipient without use of Discloser’s Confidential Information; (iv) is disclosed with Discloser’s approval; or (v) is disclosed by Recipient under a valid order of a court or government agency, provided that Recipient provides prior written notice to Discloser of such obligation and reasonably cooperates with Discloser (at Discloser’s expense) in Discloser’s efforts to convince the court or administrative body to restrict or prevent the disclosure. Either party may disclose information and Media-specific Reports that relate to the performance of the Services with respect to a particular Advertiser’s Ad directly to such Advertiser, via manual or automated means. Customer agrees and acknowledges that: (i) Innovid may use and disclose information which it has collected or received in connection with the Services in an aggregated form that is not identifiable to Customer, Advertiser or end users in order to provide, enhance, market or improve the Services; and (ii) in cases where Customer is not the owner and/or operator of the Media on which Ads are placed, and Innovid has a contractual relationship with the Publisher of such Media whereby Ads may be served on such Media, Innovid may disclose information regarding the performance of the Ads on such Media to that Publisher (including impressions, clicks, and other metrics broken out by date, time and Advertiser) for reporting purposes.
12. Miscellaneous. This Agreement, together with any applicable SOWs and/or IOs, sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes all other prior or contemporaneous representations, discussions, agreements and understandings between the parties with respect to the subject matter hereof, whether oral or in writing. This Agreement shall be governed by the laws of the state of New York, without regard to its conflicts of laws principles. Any action or proceeding arising out of or relating to this Agreement shall be commenced and litigated to conclusion only in the state or federal courts located in New York County, New York, and the parties irrevocably submit to the exclusive jurisdiction and venue of such courts over such action. Innovid may engage third parties to furnish services in connection with the Services, provided that such third parties have executed appropriate confidentiality agreements with Innovid. Customer’s Affiliate(s) may elect to receive Services under this Agreement and in such case, such Affiliate shall be considered “Customer” under this Agreement with respect to its use or receipt of the Services as if such Affiliate had entered into a separate agreement with Innovid, and such Affiliate shall be responsible for its acts or omissions hereunder. Customer may not assign, delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, without Innovid’s prior written consent. Any assignment in violation of the foregoing shall be void ab initio. Innovid may assign, delegate or otherwise transfer this Agreement, whether by operation of law or otherwise, to an Affiliate or in connection with a merger or sale of all or substantially all of its stock or assets or otherwise. Subject to the foregoing, this Agreement shall be binding on permitted successors and assigns. The waiver by either party of any breach or violation of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or violation hereof. The parties shall be deemed to be acting as independent contractors and shall not be deemed to agents, representatives, joint venturers or partners. Neither party is authorized to bind the other to any obligation, affirmation or commitment with respect to any other person or entity. Any notices to be given hereunder may be effected either by personal delivery in writing or by registered or certified mail (postage prepaid with return receipt requested), overnight delivery service or facsimile (with a copy by registered or certified mail). The date upon which any such notice is received at the designated address shall be deemed to be the date of such notice. Neither party shall be liable to the other for any non-performance or delay in the performance of any of its obligations hereunder (excluding payment obligations) due to any cause beyond such party’s reasonable control or due to acts of god, acts of civil or military authorities, terrorist acts, fires, labor disturbances, floods, epidemics, governmental rules or regulations, war, riot, delays in transportation, shortages of raw materials, shortages of services, power outages, or hacker attacks (each, a “Force Majeure Event”). This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. This Agreement shall be construed as though both parties jointly drafted it. The captions in this Agreement are for convenience only and shall not affect its interpretation. In the event that any of the provisions contained in this Agreement are held to be unenforceable such provisions will be narrowed (or deleted if necessary) to the minimum extent necessary to make them enforceable. Innovid reserves the right to modify this Agreement at any time by posting the new terms and conditions on Innovid’s website. Changes are effective immediately upon posting.
Last Updated: January 19, 2017