Software and Service Subscription Agreement
This Software and Service Subscription Agreement (the “Terms”) is entered into by and between the customer listed in the applicable Innovid Order Form (“Customer”) and Innovid, Inc. (“Innovid”). These Terms together with the Order Form are collectively, the “Agreement. The Agreement governs Customer’s use of the Innovid Services. Each Order Form executed by the parties shall be deemed to automatically incorporate these Terms.
1.1. “Ad” means a video advertisement or other online advertisement created, measured or served through use of the Services.
1.2. “Account” means a user account used by Customer in connection with Innovid’s online user interface.
1.3. “Advertiser” means an individual or entity whose products or services are advertised in the Ad, or such individual or entity’s agency or representative.
1.4. “Affiliate” means an entity that, directly or indirectly, is Controlled by, or is under common Control with, a party. For the purposes of this definition, “Control” means: (a) direct or indirect control of at least 50% of the voting rights required to elect a majority of its directors; (b) the power directly or indirectly: (i) to elect a majority of its directors; or (ii) to cause the direction of its management, whether through share ownership, contract or otherwise; or (c) the direct or indirect ownership or control of all or substantially all of its assets reasonably required for the performance of this Agreement.
1.5. “Code” means code provided by Innovid to Customer in order to display or measure the Ads on Media.
1.6. “Content” means any and all materials selected, uploaded, submitted or provided to Innovid by or on behalf of Customer, including, without limitation, images, videos, links, advertising materials, logos, graphics, text, music and audio, and any content to which the uploaded material is linked to.
1.7. “CPM” means cost per thousand Impressions.
1.8. “Documentation” means all specifications, user manuals and other technical documentation relating to the Services.
1.9. “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.
1.10. “Integrated Vendor Services” means services provided by an Integrated Vendor through an integration with Innovid.
1.11. “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.
1.12. “Innovid Technology” means the Service, the Documentation and any and all of Innovid’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, advertising formats, designs and other tangible or intangible technical material or information used by Innovid or made available to Customer by Innovid in providing the Services, together with all Intellectual Property Rights in the Innovid Technology.
1.13. “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) Trademarks; (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.
1.14. “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 authorised to sell, optimise, manage, display or measure advertising. If the Media is owned and operated by a third party, such third party is referred to as a “Publisher”.
1.15. “Reports” means the reports provided by Innovid to Customer that are generated from the Services regarding the performance of the Ads, whether provided via manual or automated means.
1.16. “Reseller Arrangement” means the reseller arrangement described in this Agreement.
1.17. “Services” means Innovid’s proprietary services for: (i) designing, creating and serving Ads, which may enable end users to engage with Ads in real time via roll-overs and/or click-throughs; (ii) the Reports and the Code; and (iii) such set-up and production work with respect to the Ads as may be agreed upon by the parties from time to time in connection with this Agreement or a mutually executed Order Form or other writing (email sufficing).
1.18. “Trademarks” means the logos, service marks and trademarks of a party.
2. Innovid and Customer Obligations.
2.1.Innovid Obligations. Innovid shall:
2.1.1. Provide Ad creative & development services to Customer as agreed in a mutually executed Order Form or as otherwise may be agreed upon by the parties from time to time in writing; and
2.1.2. If applicable, provide Ad creative templates, storyboards, answers to frequently asked questions, case studies, production specifications and support for Customer to use when making contact with prospective Advertisers.
2.2. Customer Obligations. Customer shall:
2.2.1. Acquire the necessary rights to grant to Innovid the licences as described in this Agreement;
2.2.2. Pay Innovid for each Impression and for all other applicable charges in connection with the Services in accordance with the fee schedule in the applicable Order Form and in accordance with the payment terms of this Agreement, except where applicable, in the event of a Direct Advertiser Payment Arrangement as described below; and
2.2.3. Use Innovid’s Trademarks in all relevant sales and marketing materials and mention the Innovid brand as the technology platform behind the Innovid Technology using the phrase “Powered by Innovid” in all relevant sales slides in sales decks and RFPs.
3. Licence; Restrictions; Trademark Usage; Ownership; Client Agreements.
3.1.Licence. Subject to the terms of this Agreement, during the Term, Innovid grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable (except to Advertisers as contemplated in this Agreement), limited licence to access and use the Services solely in accordance with the Documentation for the purpose of enabling the display and/or measurement of Ads on Media.
3.2.Restrictions. Customer shall not: (i) sell, rent, lease, sublicense (except to Advertisers as contemplated in this Agreement) or otherwise make the Services or any portions or copies of the Services available to any third parties; (ii) modify, copy, translate, reverse engineer, decompile, create derivative works based upon, disassemble or attempt to decipher any source code of, the Services or any portions of the Services; (iii) alter, destroy or otherwise remove any proprietary notices displayed or embedded within the Services; (iv) interfere with or disrupt the Services or any security mechanisms deployed by Innovid in connection with the Services; or (v) use the Services for any purpose not expressly permitted in this Agreement, including but not limited to performing comparisons or other “benchmarking” activities, either alone or in connection with any software. Customer shall keep its Account username and password secure and shall be solely responsible for all activity occurring under its Account.
3.3.Trademark Usage. Each party (the “Granting Party”) grants to the other party a limited, non-transferable, non-exclusive, non-sub-licensable, worldwide, royalty-free right and licence during the Term to use and reproduce the Granting Party’s Trademarks to market and promote the Services and the Reseller Arrangement during the Term. If Customer is the owner or operator of the Media, Innovid may disclose to existing and prospective customers, advertisers and agencies who may be interested in placing advertising on the Media that Customer is a PubPay Partner and may use Customer’s Trademarks in connection with marketing materials, documents and presentations in order to market and promote the Services to such entities. For purposes of this Agreement, “PubPay Partner” means an entity that has a direct contractual relationship with Innovid that addresses the fees to be paid to Innovid in connection with the Services. All use of the Granting Party’s Trademarks shall inure to the benefit of the Granting Party and shall be in accordance with the Granting Party’s trademark usage guidelines provided to the other party from time to time in advance and in writing.
3.4.Client Agreements. Customer will enter into an agreement for the Services directly with each Advertiser (each, a “Client Agreement”). In no event may Customer enter into a Client Agreement that establishes an expectation, right or obligation that Innovid, whether directly or indirectly, will provide services, training, customer support, particular service levels or technical support to any other person or entity without the prior written approval of Innovid. Customer will be solely responsible for setting the fees for the Services provided to Advertisers and for invoicing and collecting payment from such Advertisers, except in the event of a Direct Advertiser Payment Arrangement as described below.
4. Ownership. The Innovid Technology and all Intellectual Property Rights in it are the exclusive property of Innovid or its suppliers. Customer assigns to Innovid any suggestions, ideas, enhancement requests, feedback or recommendations provided by Customer related to the Innovid Technology. Except for the licence expressly granted to Customer in this Agreement, no express or implied licence or right of any kind is granted to Customer regarding the Innovid Technology or any part of it, including any right to obtain possession of any source code, data or other technical material relating to the Innovid Technology. All rights not expressly granted to Customer in this Agreement are reserved to Innovid.
5. Integrated Vendors; Content; Local Law; Exclusivity.
5.2.Content. Customer shall be responsible for providing the Content to Innovid in accordance with Innovid’s specifications and guidelines. Customer and/or its licensors retain any and all Intellectual Property Rights that it or they hold in the Content. Customer grants Innovid a worldwide, royalty-free, sublicenseable licence to use, reproduce, modify and re-format for technical purposes, distribute, publicly perform, publicly display, digitally perform and measure the performance of the Ads and the Content for the purpose of performing the Services on Media designated by Customer and for marketing and promoting the Services. Customer is solely responsible for obtaining all rights, approvals, licenses, consents, releases and permissions necessary to: (i) upload, submit, select and/or provide Content to Innovid; and/or (ii) cause any Ads to be served or measured by Innovid. Innovid is not responsible for reviewing the Content or Ads and accepts no responsibility in connection with the Content.
5.3.Local Law. Customer acknowledges its responsibility to ensure that its use of the Services is permitted under the laws of its jurisdiction(s) and the jurisdictions in which the Services are used and agrees to indemnify and hold Innovid harmless if Customer’s use of the Services is in violation of applicable local law.
5.4.Similar Services. Customer shall not use any third party vendor for video ad serving during the Term.
6.1.Fees. Customer shall pay the fees in the applicable Order Form. Innovid shall provide to Customer monthly invoices where monthly fees have been incurred (provided that if Innovid has agreed to bill Customer for Integrated Vendor Services, Innovid may issue invoices for Integrated Vendor Services only after Innovid has received an applicable invoice from the applicable Integrated Vendor). All payment obligations are non-cancellable and all amounts paid are nonrefundable. 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 Fixed Costs as specified in the Order Form are for specific territory or territories of the following Innovid Services: (i) Delivery Suite, Opimisation Suite and Marketing Cloud Suite. If the parties have agreed a Minimum Monthly Usage Volume in the Order Form then if the Impressions calculated are less than the Minimum Monthly Usage Volume then the Monthly Usage Fee shall be calculated based on the Minimum Monthly Usage Volume and not the actual Minimum Monthly Usage. The Impressions counted by the ad server used by Innovid shall be used as the basis for calculating the amounts owed with respect to all per-Impression fees. If there is a discrepancy exceeding ten percent (10%) between the number of Impressions counted by Customer or its third party ad server and the number of Impressions counted by Innovid or its third party ad server, then upon Customer’s request, the parties will in good faith attempt to resolve such discrepancy by, among other things, exchanging any data or other information relevant to the disputed amounts of Impressions. Notwithstanding the foregoing, Customer shall pay any amounts that are not disputed acting reasonably and 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 the Services at any time after the Initial Term upon at least thirty (30) days prior written notice to Customer.
6.2.Payment Timing. Customer shall pay the amounts due pursuant to Innovid’s invoices within thirty (30) days of the date 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 under this Agreement and the Order Form 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 or the late payment. Amounts due under this Agreement and not paid by their due date shall incur interest at the rate of 2% per annum above the prevailing base rate of Barclays Bank PLC from the due date until the date of actual payment, whether before or after judgment. Customer shall be responsible for the reasonable collection costs (including without limitation legal fees and collection agency fees) incurred by Innovid in its efforts to collect such overdue amounts. Innovid shall be entitled, in its sole discretion, to withhold performance and discontinue provision of the Services until all amounts due are paid in full or to turn Customer over for collection to a third party agency.
7. Term and Termination.
7.1.Term. Unless terminated earlier as permitted in this Agreement, the initial term of this Agreement shall be for a period commencing on the Initial Term Start Date set forth in the applicable Order Form executed by the parties and ending on the Initial Term End Date set forth in such Order Form (the “Initial Term”).
7.1.1. 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; or
7.1.2. 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.
7.2.Effect of Termination; Survival. Immediately upon termination, Customer will cease using the Services, the Innovid Trademarks and the Code (except to the extent that existing campaigns have not been completed as of the termination date. In such case, Customer may continue to use the Services and Code until such campaigns have been completed and the Term of this Agreement shall be extended until such completion). 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. Sections 1, 4, 5.1, 5.3, 6 (to the extent of outstanding payment obligations), 7.2 and 9 through 12 shall survive termination or expiration of this Agreement.
9. Indemnification. Each party (the “Indemnifying Party”) will indemnify and hold the other party and its officers, directors, agents, Affiliates and employees (collectively, the “Indemnified Party”) harmless from and against any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable legal fees) against the Indemnified Party (collectively, “Claims”) arising out of or related to a breach by the Indemnifying Party of its representations and warranties under this Agreement. Customer will defend, indemnify, and hold harmless Innovid, its directors, officers, Affiliates, employees and agents harmless from and against any and all Claims arising out of or related to the Ads, the Content, the Media and the content contained in the foregoing. The foregoing indemnification obligations are conditioned on the Indemnified Party; (i) giving the Indemnifying Party notice of the relevant claim; (ii) reasonably cooperating with the Indemnifying Party at Indemnifying Party’s expense, in the defense of such claim; and (iii) giving the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party shall have the right to participate in the defense at its expense. In the event that the Indemnifying Party fails to defend and/or indemnify the Indemnified Party, the Indemnified Party has the right to defend or settle any claim on its own behalf though counsel of its own choice, and be fully reimbursed by the Indemnifying Party for all costs and expenses of such defense.
10. Disclaimer; Limitation of Liability.
10.1 No conditions, warranties or other terms apply to the Services, the Code, the Documentation or to any other goods or services supplied by Innovid under this Agreement unless expressly set out in this Agreement. To the fullest extent permitted by law, no implied conditions, warranties or other terms apply (including without limitation, any implied terms as to satisfactory quality, fitness for purpose or conformance with description). 10.2 Innovid does not guarantee any output or results of any of the Services or the Code and does not warrant that the Services will be uninterrupted or error-free. 10.3 Innovid shall not be liable for any Media on which the Ads appear, not for the Content of the Ad or the Media. 7.4 Nothing in this Agreement or in any Order Form will exclude or limit either party’s liability: (a) for death or personal injury resulting from the negligence of either party or their servants, agents or employees; (b) for fraud or fraudulent misrepresentation; (c) under Section 9 (Indemnification); (d) for payment of sums properly due and owing to the other in the course of normal performance of this Agreement and any Order Form; or (e) for anything which cannot be excluded or limited by law. 10.5 Neither party shall be liable under or in connection with this Agreement or any Order Form (whether in contract, tort, including, without limitation, negligence or otherwise) for any: (i) loss of profit; (ii) loss of anticipated savings; (iii) loss of business opportunity; (iv) loss of or corruption of data; (v) loss or damage resulting from third party claims; or (vi) indirect or consequential losses; suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date this Agreement was signed by the Parties). 10.6 Subject to sub-clauses 10.4 and 10.5 above, each party’s total aggregate liability to the other arising from any given event or series of connected events under or in connection with this Agreement or any SOW, shall be limited to the greater of: (i) the amount paid or payable by Company to Innovid under this Agreement in the six months immediately preceding the month in which the event (or first in a series of connected events) occurred and (ii) £25,000.
11. Confidentiality. The parties acknowledge that, in the course of their dealings under this Agreement, each may receive (“Recipient”) or otherwise become familiar with information about the other (“Discloser”), including but without limitation information about Discloser’s technology, client order information, financial information, software, product roadmaps, business activities and operations, trade secrets, third party business relationships, and all other information disclosed or made available by Discloser to Recipient that is marked “confidential” or “proprietary” or that should otherwise be reasonably understood to be confidential or proprietary (the “Confidential Information”). Customer acknowledges and agrees that the fees and information regarding the operation of the Services constitute Confidential Information of Innovid and that Innovid may disclose Confidential Information of Customer to Integrated Vendor(s) selected by Customer as permitted above. Recipientagrees 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 authorised 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 under this Agreement, provided that such Representatives are, by reason of written agreement or operation of law, bound by confidentiality restrictions consistent with those contained in this Section with respect to such information. Recipient will not attempt to reverse engineer the design or function of any of the Confidential Information of Discloser. Recipient shall have no obligation with respect to information which: (i) was rightfully in possession of or known to Recipient without any obligation of confidentiality prior to receiving it from Discloser; (ii) is or becomes publicly available without breach of this Agreement; (iii) is rightfully obtained by Recipient from a source other than Discloser without any obligation of confidentiality; (iv) is independently developed by Recipient without use of Discloser’s Confidential Information; (iv) is disclosed with Discloser’s approval; or (v) is disclosed by Recipient under a valid order of a court or government agency, provided that Recipient provides prior written notice to Discloser of such obligation and reasonably cooperates with Discloser (at Discloser’s expense) in Discloser’s efforts to convince the court or administrative body to restrict or prevent the disclosure. Either party may disclose information and Media-specific Reports that relate to the performance of the Services with respect to a particular Advertiser’s Ad directly to such Advertiser, via manual or automated means. Customer agrees and acknowledges that: (i) Innovid may use and disclose information which it has collected or received in connection with the Services in an aggregated form that is not identifiable to Customer, Advertiser or end users in order to provide, enhance, market or improve the Services; and (ii) in cases where Customer is not the owner and/or operator of the Media on which Ads are placed, and Innovid has a contractual relationship with the Publisher of such Media whereby Ads may be served on such Media, Innovid may disclose information regarding the performance of the Ads on such Media to that Publisher (including impressions, clicks, and other metrics broken out by date, time and Advertiser) for reporting purposes.
12. Miscellaneous. This Agreement sets forth the entire understanding of the parties with respect to its subject matter and supersedes all other prior or contemporaneous representations, discussions, agreements and understandings between the parties with respect to its subject matter, 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 England and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Agreement save that either party may apply to any court for an injunction or other relief to protect its Intellectual Property Rights. Innovid may engage third parties to furnish services in connection with the Services, provided that such third parties have executed appropriate confidentiality agreements with Innovid. Customer’s Affiliate(s) may elect to receive Services under this Agreement but in such case, Customer would be responsible for such Affiliates compliance with this Agreement and for Customer’s Affiliates acts or omissions. 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. 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 of this Agreement. 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 authorised to bind the other to any obligation, affirmation or commitment with respect to any other person or entity. All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified written or automated receipt or electronic log (as applicable).Neither party shall be liable to the other for any non-performance or delay in the performance of any of its obligations under this Agreement (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.