This Measurement Agreement (the “Terms”), together with the Measurement Order Form executed by the parties (collectively, the “Agreement”) is entered into by and between the customer listed in the applicable Measurement Order Form (“Customer”) and Innovid, LLC (“Innovid”). Such Measurement Order Form shall be deemed automatically incorporated into, and shall be governed by, these Terms.
1.1. “Account” means a user account used by Customer in connection with the Service.
1.2. “ACR Data” means content and advertising viewership data that is licensed by Innovid from third parties.
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. “Analytics” means the aggregate analytics provided by Innovid to Customer that are generated from the Service.
1.5. “Customer Ad Campaign Data” means the advertising exposure data collected by Innovid pursuant to a separate agreement between Customer and Innovid whereby Customer receives certain advertisement serving services from Innovid (“Ad Serving Agreement”).
1.6. “Documentation” means all specifications, user manuals, and other technical documentation relating to the Service.
1.7. “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.
1.8. “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.
1.9. “Proprietary Elements” means the Service, the Documentation, and any and all of Innovid’s proprietary technologies, know-how, products, processes, algorithms, user interfaces, 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 Service, together with all Intellectual Property Rights therein.
1.10. “Service” means Innovid’s TV reach & frequency measurement service that provides Analytics to Customer, in order to enable Customer to gain a greater understanding of its advertising campaigns’ reach and frequency. If Customer has selected the “ACR Data” option in the Order Form, such Analytics will be based upon a combination of Customer Ad Campaign Data and ACR Data, as described in the Order Form. If Customer selected the “Customer Ad Campaign Data only” option in the Order Form, such Analytics will be based solely upon Customer Ad Campaign Data.
1.11. “Territory” means the United States.
1.12. “Trademarks” means the logos, servicemarks and trademarks of a party.
2. License; Restrictions; Trademark Usage; Ownership; Client Agreements.
2.1. License. Subject to the terms of this Agreement, during the Term, Innovid grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable, limited license to access and use the Analytics solely within the Territory and solely in accordance with the Documentation, for the purpose of analyzing and optimizing Customer’s advertising campaigns that are served pursuant to the Ad Serving Agreement.
2.2. Restrictions. Customer shall not: (i) sell, rent, lease, sublicense or otherwise make the Service 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 Service or any portions thereof; (iii) alter, destroy or otherwise remove any proprietary notices displayed or embedded within the Service; (iv) interfere with or disrupt the Service or any security mechanisms deployed by Innovid in connection therewith; or (v) use the Service 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.
2.3. 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 Service 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.
3. Ownership; Feedback. The Proprietary Elements and all Intellectual Property Rights therein are the exclusive property of Innovid or its licensors. 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, including without limitation 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. Innovid shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Customer relating to the features, functionality or operation of the Service (“Feedback“).
4.1. Fees. Customer shall pay the fees set forth in the applicable Order Form. All payment obligations are non-cancellable and all amounts paid are nonrefundable. At Customer’s request, Innovid shall provide copies of the monthly invoices to the advertising agency or payment processor with whom Customer works (collectively, “Payment Processor”), in which case Customer shall cause such Payment Processor to make all payments due to Innovid in accordance with the payment terms and rates contained in this Agreement (provided that the same shall not release Customer from its payment obligations in this Agreement). The gross 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 gross Impressions counted by Customer or its third party ad server, and the number of gross 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 gross Impressions. 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. 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. Innovid may increase prices for Service no more than 7% at any time after the Initial Term upon at least thirty (30) days prior written notice to Customer.
4.2. Payment Timing. Innovid shall provide to Customer monthly invoices. 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.
4.3. 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 Service until all amounts due are paid in full or to turn Customer over for collection to a third party agency.
5. Term and Termination.
5.1. Term. Unless terminated earlier as permitted herein, the initial term of this Agreement shall be for a period commencing on the Initial Term Start Date set forth in the Order Form and ending on the Initial Term End Date set forth in such Order Form (the “Initial Term”). Thereafter, this Agreement may be renewed for an additional one-year period (each a “Renewal Term” and together with the Initial Term, the “Term”) if mutually agreed upon by both parties in a signed addendum. In addition, this Agreement may be terminated by:
5.1.1. Either party, immediately upon written notice, in the event that the other party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice thereof;
5.1.2. 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; or
5.1.3. Innovid, immediately upon written notice, in the event that ACR Data is no longer available to Innovid (where the “ACR Data” option has been selected by Customer in the Order Form). In such case, Innovid shall refund any fees that were pre-paid by Customer for the remainder of the Term.
5.2. Effect of Termination; Survival. Upon termination, Customer will cease using the Service and the Analytics, and will pay all outstanding invoices in accordance with Section 4. Sections 1, 2.2, 3, 4 (to the extent of outstanding payment obligations), 5.2 and 7 through 11 shall survive termination or expiration of this Agreement.
6. 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 comply with all applicable laws and regulations. Customer represents and warrants at all times that: (a) it is legally authorized to allow Innovid to analyze the Customer Ad Campaign Data as necessary for Innovid to perform the Service; and (b) it will not use the Service in connection with any content 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 or hateful, deceptive, libelous, hate-promoting or discriminatory or that encourages illegal behavior, or that includes 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.
7. 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. 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.
8. 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, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. INNOVID DOES NOT MAKE ANY WARRANTIES REGARDING ACR DATA, NOR DOES IT GUARANTEE ANY OUTPUT OR RESULTS OF ANY OF THE SERVICE OR THE ANALYTICS. INNOVID DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. 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 ONE (1) MONTH PERIOD 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.
9. Privacy. Customer represents and warrants that:
9.1. 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”), as each may be amended from time to time.
9.3. Customer will have obtained and documented evidence of any legally required consent sufficient for Customer Ad Campaign Data to be used in connection provision of the Service.
9.4. It will not use any Analytics 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.
9.5. 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.
10. 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 Service constitute Confidential Information of Innovid. Further, in the event that Customer makes use of an advertising agency to manage Customer’s use of the Service, Customer agrees that Innovid may disclose Customer’s Confidential Information to such advertising agency. 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 Service 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. Customer agrees and acknowledges that Innovid may use and disclose information which it has collected or received in connection with the Service in a form that is not identifiable to Customer or end users in order to provide, enhance, market or improve the Service.
11. 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. No amendment to this Agreement shall be binding on either party unless reduced to writing and signed by both parties. 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 Service, provided that such third parties have executed appropriate confidentiality agreements with Innovid. Customer’s Affiliate(s) may elect to receive the Service 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 Service 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 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. 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. 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. 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: December 9, 2021