Agency & Publisher Service Subscription Agreement

This Service Subscription Agreement (the “Terms”), together with all Order Forms executed by the parties (collectively, the “Agreement”), governs the terms and conditions under which the entity entering into these Terms (“Customer”) may use and access the Services offered by Innovid, which are further described below. Unless otherwise set forth in the applicable Order Form, the Innovid contracting party that is entering into this Agreement and its address and place of incorporation are as set forth in Schedule 1 attached hereto (as applicable, “Innovid”).  

 Please read this Agreement carefully. By executing an order form, statement of work, insertion order or other ordering document (each, an “Order Form”) that references these Terms, and/or by otherwise indicating acceptance of these Terms, Customer agrees to be bound by the Agreement. If Customer does not agree to all the terms and conditions of the Agreement, Customer will not have any right to use the Services. Innovid’s acceptance is expressly conditioned upon Customer’s assent to all the terms and conditions of the Agreement. If the Agreement is considered an offer by Innovid, acceptance is expressly limited to the terms and conditions contained therein. In the event of any conflict between an Order Form and these Terms, the terms of these Terms shall prevail. 

1. Definitions

 1.1. “Ad” means an online advertisement created, measured, served, or analyzed through use of the Services.

 1.2. “Account” means a user account used by Customer in connection with any of Innovid’s online user interface(s) (collectively, the “Platform”).

 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, in each case with whom Customer works to facilitate the use or benefit of the Services.

 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: (i) direct or indirect control of at least 50% of the voting rights required to elect a majority of its directors; (ii) the power directly or indirectly to (a) elect a majority of its directors or (b) cause the direction of its management, whether through share ownership, contract or otherwise; or (iii) 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. “Authorized User” means employees, officers, consultants, or agents of Customer and/or Advertiser who are designated to use or given access to the Services by Innovid or Customer under this Agreement. 

 1.6. “Code” means code provided by Innovid to Customer in order to display, measure or analyze the Ads on Media. 

 1.7. “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, data, music and audio, and any content to which the uploaded material is linked.

 1.8. “CPM” means cost per thousand Impressions.

 1.9. “Documentation” means all specifications, user manuals, and other technical documentation relating to the Services.

 1.10. “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.

 1.11. “Integrated Vendor Services” means services provided by an Integrated Vendor through an integration with Innovid.

 1.12. “Impression” means each individual call to servers used by Innovid to return an Ad to the Media and/or to track, measure and/or analyze an Ad.

 1.13. “Intellectual Property Rights” means any and all now known or hereafter existing: (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) 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 (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. 

 1.14. “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, measure or analyze advertising. If the Media is owned and operated by a third party, such third party is referred to as a “Publisher”.

 1.15. “Ordering Instruction” means an instruction provided by Customer to Innovid through the Platform or via email for the purpose of ordering a feature, functionality or tool (or for the modification or removal of a previously-ordered feature, functionality or tool) made available by the Services from time to time.

 1.16. “Prohibited Content” means content or material that violates any applicable laws or regulations or any rights of any third parties, including but not limited to infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right or any data protection law, or that is unlawful, fraudulent, threatening, defamatory, obscene, pornographic, profane, deceptive, libelous, hate-promoting or that encourages illegal gambling or other illegal behavior, or that constitutes or promotes discrimination on the basis of race, gender, religion, or sexual orientation, or that promotes or constitutes false advertising, unfair competition, invasion of privacy or publicity rights, or that contains any viruses, worms, Trojan horses, malware, spyware or other contaminants.

 1.17. “Proprietary Elements” means the Services, the Documentation, the Platform, the Code, and any and all of Innovid’s proprietary technologies, know-how, products, processes, algorithms, advertising formats, 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.

 1.18. “Reports”means the data, reports, analyses and statistics that are generated from the Services and made available to Customer and/or Advertiser by Innovid through pursuant to this Agreement, whether provided via manual or automated means.

 1.19. “Schedule” means a schedule attached to these Terms or subsequently executed by the parties which contains supplemental terms and conditions applicable to a particular Service ordered by Customer.

 1.20. “Self-Service” means a subset of the Ad Serving Services whereby Customer elects to manage all aspects of Ad trafficking, quality assurance of campaign(s) and Publisher and third-party requirements.

 1.21. “Services” means Innovid’s service offerings, which may include one or more of the following to the extent provided by Innovid to Customer under this Agreement: (i) “Ad Serving Services” consisting of one or more of the following: (1) set-up, design and/or production work for Ads; (2) serving of Ads; (3) adding interactive elements to Ads; (4) development and provision of related Reports; and/or (5) any other Ad Serving Services specifically set forth in the applicable Order Form; and (ii) “Measurement Services”, consisting of one or more of the following: (1) “InnovidXP Services”, which include functionality to model, analyze and measure the unique and duplicated reach, frequency and outcomes of Ads across a combination of cross-platform channels, including digital video, connected TV, and linear TV, and the provision of related Reports; and/or (2) any other Measurement Services specifically set forth in the applicable Order Form.

 1.22. “User” means visitors and/ or users of the Media who are exposed to or interact with Ads.

 1.23. “Trademarks” means the logos, service marks and trademarks of a party.

2. Services; License; Restrictions. 

 2.1. Services. Innovid shall provide Services to Customer: (i) as set forth in a mutually executed Order Form; and (ii) in the case of any subsequent Ordering Instruction, as otherwise instructed by Customer in writing (either by Customer’s selection made via the Platform, or via email) and accepted by Innovid from time to time in writing (email sufficing). Upon being accepted by Innovid in writing, the Ordering Instructions shall be binding on both parties. Where Customer requests to add any feature, functionality or tool in its Ordering Instructions, Customer agrees to pay all applicable fees and charges that were disclosed to Customer before Customer issued such Ordering Instructions, in connection with the requested additional feature, functionality or tool.

 2.2. 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) license to access and use the Services solely in accordance with the Documentation for the purpose of Customer’s receipt of the applicable Services, namely (with respect to Ad Serving Services) enabling the display and/or measurement of Ads on Media, and (with respect to Measurement Services) gaining insights and understanding into the performance of Customer’s Ads.  

3. Authorized Users; Advertisers; Restrictions. 

 3.1. Authorized Users. Customer shall keep its Account username and password secure and shall be solely responsible for all activity occurring under its Account. Customer shall implement and maintain reasonable control procedures and security measures to ensure that all Authorized Users’ Account details are kept confidential and to prevent unauthorized users from accessing same. Customer will promptly notify Innovid if Customer becomes aware of any unauthorized access to or use of its Account, or if any person having access to the Account on behalf of Customer is no longer in Customer’s employ or has changed to a role that no longer requires Account access. Innovid may temporarily suspend access to the Platform in respect of any Authorized User where it believes that such access poses a threat to the Platform or is not in compliance with this Agreement until the issue is resolved to Innovid’s reasonable satisfaction. Customer shall be responsible for ensuring that all Authorized Users comply with Customer’s obligations under this Agreement.

 3.2. Advertisers. Customer may use the Services for the benefit of Advertiser. If applicable to the type of Services ordered, Customer may permit Advertiser to have direct access to the Platform, in which case Customer must provide Advertiser with a user login for the Platform, and such Advertiser shall thereafter be deemed an Authorized User. Customer agrees to ensure that: (i) Advertiser will only be given access to Reports created, derived from, or utilizing data relating to such Advertiser’s own Ad campaigns, and not be able to view or access data relating to any other party; and (ii) Advertiser will be entitled to use such Reports solely for its internal business purposes, including providing a copy to Customer for the purpose of media planning and acquisition.

 3.3. Restrictions. Except to the extent expressly stated otherwise in this Agreement, Customer will not (and will ensure that the Authorized Users will not) nor attempt to, or permit, procure, enable or request any other person to: (i) sell, rent, lease, sublicense (except that Customer may use the Services for the benefit of its Advertisers as set forth in this Agreement), transfer or otherwise make the Services or any portions or copies thereof available to any third parties, nor circumvent, disable, or interfere with or disrupt the Services or any security-related features of same; (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) impose an unreasonably large load on Innovid’s servers or infrastructure; (iv) alter, destroy or otherwise remove any proprietary notices displayed or embedded within the Services, or permit use of or access to the same by, any person other than Customer and Authorized Users; (v) use the Services to assist, create, market or distribute any competitive product or service, to act as a service bureau on behalf of any person, or use the Services in connection with any Prohibited Content or for purposes of employment eligibility, credit eligibility, health care eligibility or insurance eligibility underwriting or pricing; or (vi) 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.

 3.4. Schedules. If Customer orders Ad Serving Services, the terms of Schedule 2 shall apply. If Customer orders Measurement Services, the terms of Schedule 3 shall apply.

4. Client Agreements; Ownership; Self-Service.

 4.1. Client Agreements; Attribution. If Customer uses the Services for the benefit of Advertisers: (i) Customer will first enter into an agreement relating to the Services directly with each Advertiser (an “Advertiser Agreement”). In no event may Customer enter into an Advertiser 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 is solely responsible for abiding by the Advertiser Agreement and for invoicing and collecting payment from Advertisers, except in the event of a Direct Advertiser Payment Arrangement as described below; and (ii) Customer will use Innovid’s Trademarks in all relevant sales and marketing materials and mention the Innovid brand as the technology platform behind the Services using the phrase “Powered by Innovid” in all relevant Advertiser-facing marketing materials (e.g. sales decks) and RFPs. 

  4.2. Ownership. The Proprietary Elements and all Intellectual Property Rights therein are the exclusive property of Innovid or its suppliers. Innovid may freely use any suggestions, ideas, enhancement requests, feedback or recommendations provided by Customer related to the Proprietary Elements, except for any Confidential Information of Customer. Other than the limited licenses expressly granted to Customer in this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Proprietary Elements or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Proprietary Elements. All rights not expressly granted to Customer in this Agreement are reserved to Innovid.

 4.3. Self-Service. If Customer has elected to use the Services on a Self-Service basis in the applicable Order Form, Customer agrees that it will be solely responsible for managing all aspects of Ad trafficking, quality assurance of its campaign(s) and adhering to all Publisher and third-party requirements. In the event that Customer is granted access to any feature, functionality or tool made available by Innovid in connection with Customer’s use of Self-Service, Customer agrees and acknowledges that it is permitted to use such feature, functionality or tool solely for Ad campaigns that will be delivered or served via Innovid’s Ad Serving Service. Without limiting the generality of the foregoing, Customer agrees that it is permitted to use any and all Ads created or developed by Customer via any such feature, functionality or tool solely for Ad campaigns that will be delivered or served via Innovid’s Ad Serving Service. In the event that Customer requests support from Innovid beyond the support offered by Innovid in the normal course for Self-Service customers, Customer will be responsible for paying Innovid in accordance with Innovid’s then-current rates for such support.

5. Integrated Vendors; Content; Trademark Usage; Local Law. 

 5.1. Integrated Vendors. From time to time, Innovid may make Integrated Vendor Services available to Customer. Customer’s use of Integrated Vendor Services may be subject to the Integrated Vendors’ terms of use, agreements, privacy policies and/or other third-party agreements or terms and conditions (collectively, “Third-Party Agreements”). Customer is solely responsible for abiding by all applicable Third-Party Agreements. Innovid may add or remove integrations with Integrated Vendors from time to time. If Customer elects to receive any Integrated Vendor Services through or in conjunction with the Services, Customer hereby authorizes Innovid to share data related to or collected in connection with Customer’s advertising campaigns with the applicable Integrated Vendor. Customer agrees that data from the Media may be utilized for the purposes of performing cookie syncs with Integrated Vendors. Customer will be solely responsible for its use of and interactions with the Integrated Vendors. Customer must pay any fees due to the Integrated Vendors directly with respect to any Integrated Vendor Services, except for specific campaigns for which Innovid has agreed in writing to invoice Customer directly for same (in which latter case, Customer must pay such fees directly to Innovid in accordance with the terms of this Agreement). Innovid reserves the right not to agree to invoice Customer directly for any Integrated Vendor Services until both Customer and Innovid have executed Innovid’s change order form or other agreement specifying the details of the invoicing and/or other relevant campaign details in a form reasonably satisfactory to Innovid. INNOVID IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY IN CONNECTION WITH, INTEGRATED VENDOR SERVICES AND THE ACTS OR OMISSIONS OF INTEGRATED VENDORS. 

 5.2. Content. If and to the extent Customer is required to provide Content to Innovid in order to enable Customer’s use of the Services, Customer shall be responsible for providing the Content to Innovid in accordance with Innovid’s then-current 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 but reserves the right to reject or remove any Content or Media that it believes contains Prohibited Content or violates applicable Rules or this Agreement. 

 5.3. 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 during the Term. 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.

 5.4. 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. Payment.

 6.1. Fees. Customer shall pay to Innovid the fees set forth in the applicable Order Form and Ordering Instruction. Innovid shall provide to Customer monthly invoices where monthly fees have been incurred (provided that if Innovid has agreed to invoice Customer for Integrated Vendor Services, Innovid may issue invoices for Integrated Vendor Services only after Innovid has received an applicable invoice from the Integrated Vendor). All payment obligations are non-cancellable, and all amounts paid are nonrefundable. The gross Impressions counted 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 ten percent (10%) between the number of gross Impressions counted by Customer or its Media Rating Counsel (“MRC“) accredited third-party ad server, and the number of gross Impressions counted by Innovid, then upon Customer’s request, the parties will in good faith attempt to resolve such discrepancy by exchanging any data or other information relevant to the disputed amounts of gross Impressions. Notwithstanding the foregoing, Customer shall pay any amounts that are not disputed in good faith in accordance with this Section. In all cases, Innovid will not be responsible for any third-party or Customer errors in Impression counting where such errors result in underreported numbers. Innovid will collect full payment based on accurate gross Impressions counted after reconciling errors. All amounts payable to Innovid under this Agreement will be made without the right of setoff or counterclaim, and without deduction or withholding. Integrated Vendors may increase prices for Integrated Vendor Services at any time, with or without notice (although Innovid will endeavor to provide Customer with notice thereof after Innovid has learned of the increase).

 6.2. Payment Timing. 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. 

 6.3. Payment Responsibility. Except in instances in which Innovid confirmed in writing to Customer that 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.

 6.4. Taxes; Payment Procedure. All amounts payable hereunder exclude all applicable sales, use, VAT, 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%) per month 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. Agreement Term. This Agreement shall become effective as of the start date indicated in the first Order Form and continue until terminated in accordance with this Agreement (the “Term“). 

  7.2. Order Form Term. The term of each individual Order Form shall begin on the start date or initial term start date specified therein and shall continue for a term of twelve (12) months or such other initial term specifically set forth in the Order Form (if applicable) (the “Order Form Initial Term“).  The Order Form Initial Term shall automatically renew for successive terms of twelve (12) months or such other renewal term specifically set forth in the Order Form (if applicable) (each, an “Order Form Renewal Term” and collectively with the Order Form Initial Term, the “Order Form Term“), unless one party notifies of its intent not to renew by providing written notice thereof to the other party at least sixty (60) days prior to the expiry of the Order Form Initial Term or Order Form Renewal Term, as the case may be.

 7.3. Termination. These Terms and the Order Form may be terminated by: (i) either party, immediately upon written notice, in the event that the other party materially breaches these Terms or the Order Form, and such breach is not cured within thirty (30) days of written notice thereof; or (ii) 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. These Terms may be terminated by either party, for any reason, by providing ninety (90) days prior written notice to the other party when no Order Forms are in effect at the time of the provision of such notice and for the duration of such notice period. Notwithstanding the foregoing, termination of any Order Form shall not affect the parties’ obligations under these Terms or any other Order Forms, and these Terms may not be terminated while any Order Form is in effect. 

 7.4. Effect of Termination; Survival. Immediately upon termination, Customer will cease using the Services, the Innovid Trademarks, and the Code. Sections 1, 3, 4.2, 4.3, 5, 6 (to the extent of outstanding payment obligations), 7.4, and 9 through 16 shall survive termination or expiration of this Agreement.

8. Representations and Warranties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to, and (iv) it will maintain a privacy policy linked to from its corporate website’s home page that discloses its practices regarding the collection, use and sharing of data and that complies with applicable laws and regulations, and will abide by such privacy policy. Customer represents and warrants at all times that: (a) it has sufficient rights in and to, and has secured all necessary rights, releases and approvals in and to the Content, Ads and Media in order to grant the licenses in this Agreement to Innovid, and that it is legally authorized to act on the Content, Ads and Media in the manner contemplated by this Agreement; and (b) the Content, Ads and Media do not and will not contain any Prohibited Content.

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 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 PROPRIETARY ELEMENTS 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 OR 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 PROPRIETARY ELEMENTS AND DOES NOT WARRANT THAT THE PROPRIETARY ELEMENTS WILL BE UNINTERRUPTED OR ERROR-FREE. INNOVID SHALL NOT BE LIABLE FOR ANY MEDIA ON WHICH THE ADS APPEAR, THE CONTENT OF THE ADS, ANY THIRD PARTY MATERIALS, CUSTOMER’S USE OF SELF-SERVICE, OR ANY INTEGRATED VENDOR SERVICES. 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; OR (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. Privacy.

 11.1. Customer represents and warrants that:

  11.1.1. It shall adhere to all “Rules”, defined as all applicable laws, regulations, and regulatory guidelines, as well as any applicable self-regulatory guidelines, including, without limitation, the Self-Regulatory Principles of the Digital Advertising Alliance (“DAA”), the Codes of Conduct of the Network Advertising Initiative (“NAI”), and the Self-Regulatory Principles of the European Digital Advertising Alliance (“EDAA”), as each may be amended from time to time. If Customer uses the Services for the benefit of Advertisers, it shall ensure that the Advertisers adhere to the foregoing. 

  11.1.2. It shall ensure that: (i) there is a conspicuously posted privacy policy accessible by direct link from the Media’s home page that complies with all Rules; (ii) it abides by such privacy policy; (iii) such privacy policy (a) discloses that third parties serve and measure advertising within the Media and the types of information collected by such third parties, and (b) provides a clear and conspicuous link to the NAI opt-out page (currently located at http://optout.networkadvertising.org/?c=1#!/) or the DAA opt-out page (currently located at http://optout.aboutads.info/?c=2#!/), as well as all necessary notifications to data subjects pursuant to EU 2016/679 General Data Protection Regulation (“GDPR”); and (iii) Customer will have obtained and documented evidence of any necessary consent, pursuant to applicable data protection laws, including without limitation GDPR and other Rules in every relevant jurisdiction (or other lawful basis per GDPR Article 6 where applicable) pursuant to which information that identifies, relates to, describes, or is reasonably capable of being associated with, a particular consumer or household (“PI”) of individuals may be collected and used in connection with the Services. 

  11.1.3. It will not, and will ensure that Authorized Users do not: (i) use any data provided by Innovid under this Agreement to identify or re-identify an individual, either alone or in combination with other data, or merge such data with any personally identifiable information, or enable or permit any third party to do any of the foregoing, or (ii) provide to Innovid any PI which is not required for the performance of Innovid’s obligations under this Agreement. If Customer becomes aware or has reasonable suspicion that any non-required PI has been provided to Innovid, Customer shall promptly notify Innovid and inform it of the date, time and other relevant information related thereto. 

  11.1.4. In the event that, with respect to data collection or use in connection with any Ad, Customer requests, engages in, permits or enables any activities constituting Tailored Advertising or other form of personalized advertising, as each such term is defined in the Rules or generally understood in the digital advertising industry, Customer shall ensure that such Ad meets applicable requirements for Enhanced Notice (as defined in the NAI Code of Conduct). 

 11.2. GDPR Compliance. Pursuant to GDPR, as between Customer and Innovid, with respect to the Services, Customer is a Controller, and Innovid is a Processor. The parties hereto agree that: (i) all personnel engaged in processing “Personal Data” (as defined in GDPR) are and will remain committed to confidentiality; (ii) each party shall take industry appropriate technical and organizational measures to ensure the security of processing; (iii) with respect to Personal Data of Users, as well as Personal Data of Customer personnel and other data subjects, Customer and its personnel hereby approve of all industry reasonable sub-processing, including, without limitation, CRM, backup services, marketing services, ERP services, audit, verification, trafficking, analytics, etc.; (iv) as reasonably required, Innovid will assist Customer at Customer’s sole expense in responding to requests for exercising data subjects’ rights, and will endeavor to assist Customer with its obligations pursuant to Articles 32-36 of GDPR, including data security, data protection impact assessments, and breach notifications; (v) Innovid will promptly inform Customer if it is asked to do something which to its knowledge violates GDPR or other data protection law; (vi) where required by applicable laws, Innovid will endeavor to delete and procure the deletion of any Personal Data where so instructed by Customer within a reasonable time frame and subject to proportionate expense, unless retention is required by applicable Rules or audit requirements; (vii) the parties will make available all information necessary and reasonably available to the other as may be required to demonstrate compliance with GDPR obligations under Article 28; (viii) Innovid may allow for and contribute to audits and inspections in this regard under GDPR; (ix) Innovid may process Personal Data in the EU, but also in other locations such as the UK, USA, and Israel, provided that such processing is in compliance with data protection law. In the absence of an adequacy ruling or successor certification to Privacy Shield, where the Services involve the transfer of Personal Data out of the EU or the UK, the parties agree that such transfers shall be governed by the applicable SCC, which shall be incorporated into this Agreement by reference. The “SCC” means: (a) for EU Personal Data, the unchanged version of the standard contractual clauses (applicable module: MODULE TWO: transfer controller to processor (without optional clauses)) in Commission Decision 2021/914/EU (the “EU SCC”) which can be found on Innovid’s website with completed annexes at https://www.innovid.com/eu-scc/; and (b) for UK Personal Data, the unchanged version of the EU SCC plus the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022 (together with the EU SCC, the “UK SCC”), which can be found on Innovid’s website with completed annexes at https://www.innovid.com/uk-idta/.For the purposes of the descriptions in the SCC, Customer is the “data exporter” and Innovid is the “data importer”. Innovid’s Data Protection Officer may be contacted at privacy@innovid.com. Customer shall implement appropriate technical and organizational measures to ensure, and to be able to demonstrate, that processing is performed in accordance with GDPR, including making Personal Data accessible to, or transferring it to, Innovid.  

 11.3. U.S. Privacy Law Compliance. To the extent Innovid processes any PI under this Agreement that includes “Personal Information” or “Personally Identifiable Information” or substantially similar term as defined under applicable privacy or data protection laws or regulations in the United States, Customer and Innovid hereby agree to abide by the U.S. Data Processing Addendum set forth at https://www.innovid.com/us-data-processing-addendum/. 

 11.4. Amendments to Rules. Customer and Innovid agree to negotiate in good faith with each other to make any amendments to this Agreement as are reasonably necessary to comply with the Rules from time to time.  

12. 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, code, 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 Innovid’s Affiliates, and 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. Except as otherwise expressly permitted in this Agreement, 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; (v) is disclosed with Discloser’s approval; or (vi) is disclosed by Recipient under a valid order of a court or government agency of competent jurisdiction, 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 such court or government agency to restrict or prevent the disclosure. In cases where Customer is not the owner and/or operator of the Media on which Ads are placed or measured, and Innovid has a contractual relationship with the Publisher of such Media whereby Ads may be served or measured on such Media, Customer agrees that 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. Either party may disclose information and Media-specific Reports that relate to the performance of Innovid products and services directly to such Advertiser, via manual or automated means, and such information and Reports may include the applicable Publisher or Media name in connection therewith. Customer agrees and acknowledges that Innovid may use and disclose information which it has collected or received in connection with the Services in a form that is not identifiable to Customer, Advertiser, or end users in order to provide, enhance, market, or improve the Services.

13. Anti-Corruption.Neither Customer nor Customer’s Affiliates, nor, to the best knowledge of Customer, any of Customer’s or Customer’s Affiliates’ respective Representatives, is aware of or has taken any action, directly or indirectly, that would result in a violation by any such person of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder (the “FCPA”), or any other applicable anti-bribery or anti-corruption rules or regulations (together with the FCPA, the “Anti-Corruption Rules”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in each case, in contravention of the Anti-Corruption Rules. Additionally, Customer and its Affiliates have conducted their respective businesses in compliance with the Anti-Corruption Rules and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. 

14. Affiliates. 

 14.1. Innovid Affiliates. Customer acknowledges and agrees that Innovid Affiliates may own, license or provide all or part of the Services. Innovid shall ensure compliance by its Affiliates with the terms of this Agreement. Customer acknowledges and agrees that in the event it breaches any of its obligations under this Agreement, an Innovid Affiliate may suffer loss or damage. Customer agrees that such Innovid Affiliate shall be entitled to enforce the provisions of this Agreement directly against Customer, as if it was and in place of, Innovid, in accordance with applicable laws. 

 14.2. Customer Affiliates. Customer’s Affiliate(s) may elect to receive Services under this Agreement and in such case, each 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. 

15. Publicity. Innovid may refer to Customer, Advertisers, the provision of the Services and the existence of this Agreement on Innovid’s website and in advertising and reference materials including materials provided to potential clients. Innovid shall seek the prior consent of Customer to the publication of any press release or case study referring to Customer or Advertisers.

16. Amendment. Innovid may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Customer informs Innovid that it does not accept such amendments. In the event Customer informs Innovid that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Innovid and Customer. 

17. Miscellaneous. This Agreement 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 applicable jurisdiction set forth inSchedule 1. Any action or proceeding arising out of or relating to this Agreement shall be commenced and litigated to conclusion only in the applicable venue set forth inSchedule 1, and the parties irrevocably submit to the exclusive jurisdiction and venue of such courts over such action. To the extent applicable, the parties hereby expressly waive New York General Obligations Law Section 5-903 and therefore agree to the automatic renewal provisions provided herein. 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 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, reorganization, spin-off, consolidation, sale of a majority of its issued and outstanding voting securities, or sale of all or substantially all of its 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 be 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. Except to the extent expressly stated otherwise in this Agreement, this Agreement does not give rise to any rights for any third party to enforce or otherwise invoke any term of this Agreement. Any notices to be given hereunder may be effected by email. In the case of notices to Innovid, such notices shall be sent to legal@innovid.com, Attn: Legal Counsel. In the case of notices to Customer, such notices shall be sent to the email address provided by Customer in the Order Form, as modified from time to time by Customer with fourteen (14) days prior written 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 such as an act of god, act of civil or military authority, terrorist act, fire, labor disturbance, flood, pandemic or epidemic, governmental rule or regulation, war, riot, delay in transportation, shortage of raw materials, shortage of services, power outage, or hacker attack (each, a “Force Majeure Event”). 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.

SCHEDULE 1

Innovid Contracting Entity, Innovid Entity Address, Choice of Law and Venue

SCHEDULE 2

Supplemental Terms and Conditions Applicable to Ad Serving Services

1. Innovid Obligations. If Customer uses the Services for the benefit of its Advertisers, Innovid will upon request provide Ad creative templates, storyboards, answers to frequently asked questions, case studies, production specifications and support for Customer to utilize when discussing the Services with Advertisers.
2. Content License. Subject to the terms of the Agreement, Customer 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.
3. PubPay Partner. 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 whereby such entity is responsible for paying the fees owed to Innovid in connection with the Services. All use of Customer’s Trademarks shall inure to the benefit of the Customer and shall be in accordance with Customer’s trademark usage guidelines provided to Innovid from time to time in advance and in writing.
4. True-Up. In the event that the applicable Order Form specifies a minimum annual spend commitment by Customer (“Minimum Annual Spend“), then with respect to each calendar year during the Order Form Term (pro-rated for the number of days in which the Order Form was in effect during such year), Customer will pay Innovid the greater of (i) the Minimum Annual Spend set forth in the Order Form (or any fee increase made in accordance with the Terms); or (ii) the fees due by Customer calculated in accordance with the rate card set forth in the Order Form (or any fee increase made in accordance with the Terms) based on Customer’s actual usage of the Services in such calendar year. The amount due by Customer for the difference between the Minimum Annual Spend applicable to each calendar year during the Order Form Term and the total fees already paid by Customer for such year (the “True Up“) will be included in the last invoice of such calendar year.
5. Exclusivity. Customer shall not use any third-party vendor for video ad serving during the Term.
6. Effect of Termination. Where a party has provided notice of termination of an Order Form (other than for the other party’s uncured material breach), and existing campaigns have not been completed as of the termination date, Customer may continue to use the Services and Code until such campaigns have been completed, and the Term of this Agreement and Order Form Term shall be extended until such completion. In any event, Impressions occurring post-termination as a result of failure to cease using the Code will be payable in accordance with the terms of this Agreement notwithstanding termination.

SCHEDULE 3

Supplemental Terms and Conditions Applicable to Measurement Services

 1. Definitions

 “Actual TV Spend” means the gross value of the TV advertising spend uploaded to the Platform.

“Additional Usage Fees” means a percentage of the Actual TV Spend that is in excess of the Expected TV Spend.

“Customer Data” means data, media, information, or other content that is received, uploaded or collected from or on behalf of Customer, Advertiser or Authorized Users in connection with the Measurement Services, including, as applicable: (i) Spot Data; (ii) Advertiser Data; (iii) Impression Data; and (iv) creatives and creative data, advertisements and other advertising materials. Customer Data does not include any data that is independently derived or obtained by Innovid.

“Advertiser Data” means Customer Data relating specifically to Advertiser, including User Response Data.

“Expected TV Spend” means the TV advertising costs that the Customer has committed to in advance with Advertiser.

“Spot Data” means information relating to the airing of an Ad, such as airing date and time, networks aired on and shows aired during, and creatives.

“Third Party Materials” means data, services, technology, information, and other materials owned by or licensed to a third-party data or service provider (“Third Party Provider”) and provided to Innovid or its Affiliates by the applicable Third Party Provider for the purposes of Innovid providing certain Measurement Services.

“User Data” means: (i) information and statistics relating to a User’s response to an Advertiser’s advertising campaign, which data may include IP address, cookie ID, advertising ID, date/time of User session, url, refurl, actions taken, user ID, information on browser and operating system, and referrer and agent details; and/or phone number, all depending on the type of response being measured (collectively, “User Response Data”); and (ii) viewership data comprising information and statistics that relate to a User’s exposure to an Advertiser’s advertising campaign, which data may include IP addresses and other online identifiers (“Impression Data”).

2. License. Subject to the terms of this Schedule and Agreement, Innovid hereby grants to Customer a non-exclusive, non-sub-licensable right to access the Platform during the Term, and to download, copy and use in perpetuity the Reports: (1) for its internal business purposes, including to incorporate content from the Reports in internal documents and to optimize Customer’s advertising campaigns; and (2) for providing copies to Advertiser for Advertiser’s internal use as permitted herein. Innovid disclaims any and all liability relating to any decisions made by Customer or Advertiser based on the Measurement Services or the Reports.

3. Fees. Innovid will invoice the Customer for the following fees (each as applicable and as detailed in the Order Form), and Customer shall pay same in accordance with the payment terms of the Agreement:

             a. the minimum monthly fees, invoiced monthly in advance (“Monthly Fees“);  

             b. pilot, retro, campaign, or other one-off fees (“One-Off Fees“);  

             c. any other fees as agreed and set out in the Order Form (e.g., per-impression fees); and 

              d. In cases where the Monthly Fees or the One-Off Fees are calculated on the basis of Expected TV Spend, if Customer’s  Actual TV Spend exceeds the Expected TV Spend during any given month of the Term, Innovid shall invoice Customer on a monthly basis for a percentage of the Actual TV Spend that is in excess of the Expected TV Spend, which percentage shall be set out in the Order Form (“Additional Usage Fees“), and Customer shall pay same in accordance with the payment terms of the Agreement.  

4. Data Ownership and Responsibilities.

a. Customer Data. Customer is solely responsible for providing Innovid with all Customer Data in the agreed format and through the agreed mechanism, for determining the suitability of (and ensuring that the Advertiser determines the suitability of) all Customer Data for the intended use under this Agreement, and for verifying the authenticity and accuracy of same. Customer represents and warrants that: (i) it has all rights, permissions and licenses necessary to provide the Customer Data to Innovid in accordance with the terms of this Agreement; (ii) Customer shall comply and ensure that Advertiser complies with all applicable Rules (including by providing clear and accurate privacy notices, and by obtaining any required consents and approvals from Users as required under applicable Rules), and (iii) Customer shall provide Users with an option to opt out of the collection of all User Response Data and Impression Data by using the unique opt out link provided by Innovid or as otherwise agreed with Innovid. Without limiting its other rights and remedies, Innovid may remove or disable access to any Customer Data that is in breach of this Agreement. 

b. User Data. In order to provide the Service, Innovid may provide Customer, Advertiser or a Third-Party Provider acting as a service provider on behalf of the Customer or Advertiser, with the Code to collect User Data. Customer agrees that the Code may be used to collect User Data and agrees to provide assistance reasonably necessary to deploy same. Customer accepts that Innovid may undertake reviews to confirm that the Customer’s or its Third Party Provider’s data usage is within reasonable limits of Innovid’s standard data allowances. 

 c. Third Party Materials. Where Third Party Materials are being provided by a Third Party Provider in relation to the Measurement Services, Innovid does not make any representations or warranties regarding Third Party Materials and disclaims all liability for same. In the event that any necessary Third Party Material is no longer available to Innovid, Innovid may terminate the affected portion of the Measurement Services and cease providing such portion of the Measurement Services to Customer upon written notice. Customer acknowledges that the Third Party Provider (or its licensor) owns and retains all right, title, and interest  in the Third Party Materials. 

Last updated: July 1, 2024