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.
WHEREAS, Innovid supplies Services related to display and measurement of interactive online video advertising; and
WHEREAS, Company wishes to utilize the Services in connection with the display of Advertisements on Websites, on its own behalf and/or on behalf of Advertisers, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement, the sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Definitions. The following terms shall have the following meanings, which shall apply equally to both the singular and plural forms of the terms defined:
1.1 “Advertisement” means an interactive video advertisement or other online advertisement created through use of the Services.
1.2 “Advertiser” means an individual or entity that has a contractual relationship with Company under which such individual or entity is permitted to make use of the Services.
1.3 "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.
1.4 “iRoll Code” means code provided by Innovid to Company, to be applied to the Websites and/or Advertisements in order to enable the Services in conjunction with such Websites and/or Advertisements.
1.5 “Impression” means each individual call to servers used by Innovid to return an Advertisement to the Websites.
1.6 “Reports” means the reports provided by Innovid to Company that are generated from the Services regarding the performance of the Advertisements (including but not limited to reports provided via Innovid’s proprietary user interface (“Analytics”)).
1.7 “Reseller Arrangement” means the reseller arrangement described in this Agreement and its exhibits.
1.8 “Services” means Innovid’s proprietary service, technology and functionality for: (i) designing, creating and serving Advertisements (each such Advertisement, an “iRoll”), which enables end users to engage with Advertisements in real time via roll-overs and/or click-throughs; (ii) the Reports and the iRoll Code; and (iii) set-up and production work with respect to Advertisements as described in an IO or SOW that is executed by the Parties and that references this Agreement.
1.9 “Trademarks” means the logos, servicemarks and trademarks of a Party.
1.10 “Website” means a website, mobile website, connected TV device or other media that is owned or operated by Company, or on which Company is legally authorized to sell, optimize, manage or display advertisements. If the Website is owned and operated by a third party, such third party is referred to as a “Publisher”.
2. iRoll Preferred.
2.1. Innovid Obligations. Innovid shall:
(a) Provide Advertisement creative & development services to Company as set forth in a mutually executed addendum, IO or SOW; and
(b) Provide Advertisement creative templates, storyboards, answers to frequently asked questions, case studies, production specifications and support for Company to utilize when making contact with prospective Advertisers..
2.2 Company Obligations. Company shall:
(a) Acquire the necessary rights to grant to Innovid the licenses as described in this Section 2;
(b) 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 and that references this Agreement (the “Fees”) and in accordance with Section 3, except in the event of a Direct Advertiser Payment Arrangement as described in Section 3;
(c) Provide the creative content to be used in the Advertisements (the “Content”) to Innovid in a format and delivery method as reasonably requested by Innovid;
(d) 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; and
(e) Refrain from altering, modifying, copying, translating, reverse engineering, decompiling or disassembling the Services or any portion(s) thereof or creating derivative works therefrom, tampering with or using any workaround to interfere with the proper working of the Services or any security measure used by the Services, or attempting to do any of the foregoing.
2.3 Licenses; Ownership.
(a) Licenses. Company hereby grants Innovid a worldwide, non-exclusive, royalty-free right and license, to use, reproduce, modify and re-format, for technical purposes, distribute, publicly perform, publicly display and digitally perform the Advertisements and the Content for the purpose of utilizing the Services on Websites designated by Company, and for marketing and promoting the Services. Innovid hereby grants Company a worldwide, non-exclusive, limited, non-transferable, non-sublicenseable (except to Advertisers as contemplated in this Agreement) right to make use of the Services during the Term and pursuant to the terms and conditions in this Agreement, for the purpose of displaying Advertisements on the Websites and viewing Reports.
(c) 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 Company is the owner or operator of the Websites, Innovid may disclose to existing and prospective customers, advertisers and agencies who may be interested in placing advertising on the Website that Company is a PubPay Partner, and may use Company’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.
(d) Customer Agreements. Company will enter into an agreement for the Services directly with each Advertiser and Publisher (“Customer Agreement”). In no event may Company enter into a Customer 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. Company 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 in Section 3.
(e) Ownership; Reservation of Rights. Except for the limited license rights expressly granted to Company in this Section 2, Innovid is the sole and exclusive owner of, and retains all right, title and interest in and to, the Services and all portions thereof, the technology associated with the Services, and Innovid’s Trademarks, and all intellectual property rights associated with the foregoing, including but not limited to all patent, copyright, trademark, trade secret and other proprietary rights therein. Nothing herein shall be construed as a transfer or conveyance by Innovid to Company of ownership or title to the Services or portions thereof, nor to any patents, copyrights, trade secrets, trademarks and other intellectual property or proprietary rights therein. Except for the limited license rights expressly granted to Innovid in this Section, Company retains all right, title and interest in and to Company’s own products and services and Company’s Trademarks, and all intellectual property rights associated with the foregoing, including but not limited to all patent, copyright, trademark, trade secret and other proprietary rights therein (excluding the Services to the extent that they are utilized in conjunction with the Websites and/or Advertisements).
3. Invoices and Reports.
3.1 Invoices. Innovid shall provide to Company a monthly invoice detailing the total Fees for the immediately preceding month. 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 Company or its third party ad server, and the number of Impressions counted by Innovid or its third party ad server, then upon Company’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, Company shall pay any amounts that are not disputed in good faith in accordance with this Section 3.
3.2 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, Company will be solely responsible for paying the Fees due under this Agreement to Innovid.
3.3 Payment Timing. Except to the extent mutually agreed by the Parties upon in writing (with email being sufficient) with respect to specific set-up and development Fees to be charged following the conclusion of a campaign, Company shall pay the amounts due pursuant to Innovid’s invoices within thirty (30) days of Company’s receipt of each such invoice. Any invoice-related dispute with respect to which Company does not notify Innovid in writing within fourteen (14) days of Company’s receipt of the applicable invoice shall be deemed waived.
3.4 Taxes; Payment Procedure. All amounts payable hereunder exclude all applicable sales, use and other taxes. Company 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 payment of any taxes hereunder. 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 Company 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.
4. Term and Termination.
4.1 Term. Unless terminated earlier as permitted herein, the initial term of this Agreement shall be for a period of one 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:
(a) 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
(b) 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.
4.2 Effect of Termination; Survival. Immediately upon termination, Company will cease using the Services and the Innovid Trademarks, and will remove the iRoll Code from the Website (except to the extent that existing campaigns have not been completed as of the termination date; in such case Company 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 remove the iRoll Code from the Website will be payable in accordance with the terms of this Agreement notwithstanding termination. Sections 2.4(e), 3 (to the extent of outstanding payment obligations), and 4.2 through 9 shall survive termination or expiration of this Agreement.
6. 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. Company 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 Advertisements, the Content, the Websites 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.
7. 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 WEBSITE ON WHICH THE ADVERTISEMENTS APPEAR, NOR FOR THE CONTENT OF THE ADVERTISEMENTS. UNDER NO CIRCUMSTANCES SHALL INNOVID BE LIABLE TO COMPANY 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.
8. 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 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”). Company hereby acknowledges and agrees that the Fees and information regarding the operation of the Services constitute Confidential Information of Innovid. Recipient hereby agrees to take all 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, contractors, 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 at least as restrictive as 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 or (iv) 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. The terms of confidentiality under this Agreement do not limit any Recipient’s right to develop independently or acquire products, services or technologies that are similar to Discloser’s products, services or technologies, without use of Discloser’s Confidential Information. Either Party may disclose aggregate and Website-specific Reports that relate to the performance of the Services with respect to a particular Advertiser’s Advertisement directly to such Advertiser. Company 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 Company, Advertiser or end users in order to provide, enhance, market or improve the Services; and (ii) in cases where Company is not the owner and/or operator of a Website on which Advertisements are placed, and Innovid has a contractual relationship with the Publisher of such Website whereby Advertisements may be served on such Website, Innovid may disclose information regarding the performance of the Advertisements on such Website to that Publisher (including impressions, clicks, and other metrics broken out by date, time and Advertiser) for reporting purposes.
9. 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. Company 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). Mailed notices shall be addressed to the Parties at the addresses set forth in the signature block of this Agreement, but each Party may change such address by written notice in accordance with this paragraph. 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. 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. 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: December 17, 2014