Terms of Use
Date of last revision: December 9th, 2024
The following Terms and Conditions (the “Standard Terms”) shall govern the use of the Services (defined below) provided by Integral Ad Science, Inc.’s (“IAS”) subsidiary, Publica LLC (“Publica”) as described in the Order Form, Purchase Order, or other agreement (the “Order”, and together with the Standard Terms, collectively referred to herein as the “Agreement”) entered into between You (“Customer”) and IAS or its affiliates (collectively with Publica, referred to herein as “Company”). If You are entering into the Agreement on behalf of a company or other legal entity (as permitted herein), You represent that You have the legal authority to bind the legal entity to the Agreement, in which case “You”, “Your” or “Customer” shall mean such entity. If You do not have such authority or if You disagree with any of the terms in the Agreement, IAS does not grant You a license to use the Services. In the event of any inconsistency between the Agreement and the applicable Order, the applicable Order controls.
The most recent version of the Agreement can always be found at https://www.getpublica.com/terms-conditions. Company may change the Agreement by posting a new version without notice. Use of the Services after such change constitutes acceptance of such changes.
1. SERVICES; BETA SERVICES; TRIAL SERVICES.
A. Subject to the Agreement and payment of any fees pursuant to Section 3 below, Company hereby grants Customer a limited, revocable, non-exclusive, non-transferable, worldwide license to access and use (i) the products and solutions listed in the applicable Order, (ii) the Company’s user interface (“Publisher UI”), and (iii) the data provided or collected in connection with the use of the products and solutions, including data aggregated and reported to Customer though the Publisher UI (collectively, the “Company Data”). Subsections (i), (ii), and (iii) are collectively referred to herein as the “Services”.
B. The Services are further described at https://integralads.com/ias-legal-portal/description-of-publica-solutions/. Such link may include additional terms and conditions in connection with certain Services (“Additional Service Terms”). Customer hereby agrees to comply with such Additional Service Terms. Such Additional Service Terms shall be deemed a part of the Standard Terms, and any reference to the “Standard Terms” shall include the applicable Additional Service Terms. Company may modify the Additional Service Terms, as well as the description of Services included in such link, by posting a new version without notice to Customer. Use of the Services after such change constitutes acceptance of such changes.
C. From time to time, the Services may be adjusted, improved, or modified, as Company may deem necessary. Certain improvements, modifications, and enhancements may only be available with an additional fee. If any such adjustment, improvement, or modification results in a material decrease in the functionality of the Services, Company will take all commercially reasonable steps to provide Customer with prior notice. Additionally, from time to time, Company may deprecate one or more Services and Company agrees to commercially reasonable steps to provide Customer with at least thirty (30) days prior written notice. Customer agrees that Customer’s purchase of any Services is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Company with respect to future functionality or features. Customer acknowledges and agrees that Company may update the Agreement to add new Services and features and change rates by providing Customer 30 days’ advanced notice, email sufficient (“Fee Notice”). In the event Company updates the Agreement with a Fee Notice in accordance with the foregoing sentence, Customer’s
use of the relevant products and services after such 30-day period shall constitute acceptance of those changes.
D. Beta Service. Company may, from time to time, at its option, offer alpha, beta, seed, and other pre-release software, solutions, and related documentation, materials, and information, made available to Customer, for Customer's internal evaluation purpose only, at no additional Fee (“Beta Service”). For the purpose of these Standard Terms, Beta Service shall be considered a Service, subject to the terms and conditions set forth in this Section. Customer hereby agrees to participate in any Beta Service as may be offered to Customer by Company from time to time. Notwithstanding anything to the contrary contained in these Standard Terms: (i) Beta Service does not come with support of any kind whether or not the parties have entered into a specific agreement outlining service and support requirements; (ii) Customer's use of the Beta Service may be subject to additional terms provided by Company; (iii) Company reserves the right to discontinue making available the Beta Service at any time, without notice, in Company’s sole discretion; and (iv) use of the Beta Service will automatically terminate, without notice, at such time as Company no longer makes such Beta Service generally available. Customer hereby acknowledges and agrees that the: (i) Beta Service may be unpredictable and lead to erroneous results; (ii) Beta Service may be experimental and has not been fully tested; (iii) Beta Service may not meet Customer's requirements; (iv) use or operation of any Beta Service may not be uninterrupted or error-free; (v) Customer's use of any Beta Service is for purposes of evaluating and testing the Beta Service and providing feedback to Company; (vi) Customer shall inform Customer's employees, representatives, and other users regarding the nature of the Beta Service; and (vii) Customer will hold all information relating to the Beta Service and Customer's use of the Beta Service, including any performance measurements and other data relating thereto, in strict confidence and shall not disclose such information to any unauthorized third parties. Customer shall promptly report any errors, defects, or other deficiencies in the Beta Service to Company. NOTWITHSTANDING ANY OTHER PROVISION OF THESE STANDARD TERMS, THE BETA SERVICE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, AND WITHOUT ANY INDEMNIFICATION OR LIABILITY BY COMPANY. Customer hereby waives any and all claims, now known or later discovered, that Customer may have against Company and its suppliers and licensors arising out of Customer's use of the Beta Service.
E. Trial Service. Company may, from time to time, offer a Service to Customer to use for a limited period of time for evaluation purposes, in each case as set forth in the applicable Order (“Trial Service”). For the purpose of these Standard Terms, Trial Service shall be considered a Service, subject to the terms and conditions set forth in this Section and the applicable Order. NOTWITHSTANDING ANY OTHER PROVISION OF THESE STANDARD TERMS, THE TRIAL SERVICE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. UNLESS EXPRESSLY AGREED OTHERWISE IN THE ORDER, THE TRIAL SERVICE IS PROVIDED WITHOUT ANY INDEMNIFICATION LIABILITY BY COMPANY, AND EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE GREATER OF (I) THE EVALUATION FEE PAID OR PAYABLE TO COMPANY DURING THE EVALUATION PERIOD OR (II) $1,000. Customer hereby waives any and all claims, now known or later discovered, that Customer may have against Company and its suppliers and licensors arising out of Customer's use of the Trial Service.
2. CUSTOMER OBLIGATIONS.
A. Customer agrees to comply with the implementation specifications provided to Customer by Company. Customer shall be responsible for any and all costs incurred by Company in connection with Customer’s use of the Services prior to confirming with Company that the Services have been implemented correctly.
3. FEES.
A. Customer shall pay Company all fees set forth in the Agreement (collectively, the “Fees”). All undisputed Fees are nonrefundable and are payable within thirty (30) days of receipt of the invoice. If Customer disputes the validity of an invoiced Fee, Customer must provide prompt written notice within thirty (30) days to Company stating the details of any such dispute, provided that Customer waives any right to bring any dispute related to an invoiced Fee if not raised within thirty (30) days. If only a portion of an invoice is in dispute, Customer shall pay all undisputed amounts in accordance with the terms of this Section 4. Acceptance by Company of any partial payment does not constitute a waiver of the disputed amounts. All invoices are payable in U.S. dollars, unless specified otherwise and approved. Company reserves the right to charge a late fee on any amount not paid after fifteen (15) days of receipt of written notification of non-payment equal to 1.5% per month (or, if lower, the maximum rate allowed by law) on the outstanding balance for the period such payment is delinquent. In the event Customer fails to make timely payment, Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
B. Customer shall be responsible for providing Company with (a) correct billing information which shall include the applicable IO/PO number and the name and address, and (b) any additional information that Customer reasonably requires to be reflected in an invoice issued by Company. Company shall not be responsible for, nor shall any delay in payment be excused due to, Customer's failure to provide Company with any of the information described in the preceding sentence. Company may, in its sole discretion, invoice Customer through one of its subsidiaries or affiliates in the same country or region as Customer. Any invoice originating from a Company affiliate or subsidiary shall be considered a valid invoice and all payments shall be made to the bank account designated in such invoice.
C. Customer agrees to pay the Fees on any detected use of the Services as recorded by Company’s technology. Company’s reporting and usage statistics shall at all times be determinative for billing purposes. Fees are calculated according to numbers of
impressions, then (save as may otherwise be agreed by the parties) those impressions shall be counted and calculated by Company according to reasonable industry standards. Customer agrees that it shall be billed for all impressions processed and analyzed by Company.
D. Currency Conversion. Where Fees are stated in an Order in one currency, but are required to be paid or understood in another currency, then Company may convert such Fees into the latter currency using the rolling average exchange rate over the past four calendar quarters preceding that date, as provided at http://www.oanda.com/currency/converter/. Additionally, where Fees are converted from USD or EUR into additional currencies in an Order, Company may, once per calendar year at its sole discretion, update the
non-USD/EUR rates using the rolling average exchange rate over the past four calendar quarters preceding that date, as provided at http://www.oanda.com/currency/converter/. At Company's discretion, Company may provide pricing in non-USD currencies within the Publisher UI solely for Customer's reference and convenience. Company is not liable to Customer for any discrepancies or inaccuracies within any currency conversion function contained or displayed within the Publisher UI and Company is not responsible for Customer's reliance on any such currency conversion provided by Company.
E. All payments under this Agreement are exclusive of taxes, and each party shall solely and separately bear and be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement and its performance hereunder. If either party is required to collect sales taxes, value added taxes (“VAT”),
goods and services taxes (“GST”) or other applicable taxes related to any payments under this Agreement and remit such taxes to the appropriate taxing authorities, then such party shall duly collect such amounts and remit such taxes to the appropriate taxing authorities. If either party is required to deduct or withhold taxes from any payments made to the other party under this Agreement and remit such taxes to the appropriate taxing authorities, then such party shall duly withhold such amounts and remit such taxes and shall pay to the other party the remaining net amount after the taxes have been withheld. Both parties will cooperate with each other in providing the necessary tax documentation in order to effect payment.
F. Payment Terms for Publica’s Managed Platform Connect and Platform Connect solution (collectively referred to herein as “PC”). Solely where Customer uses the PC solution the following terms apply:
(i) PC Seller. If Customer elects to utilize the PC as a seller (“PC Seller”), Company will collect the amounts owed from PC Buyers for inventory sales on PC Seller’s behalf and will remit such amounts, after first deducting any Fees owed to Company. Company shall have no liability for and shall not be required to credit or pay PC Seller for, any sums related to the inventory sales not yet cleared from the buyer (“PC Buyer”) to Company. For clarity, in addition to any fees owed for the PC solution, Company will continue to charge PC Seller its applicable Fees for its Services. Inventory sold will be reported to the PC Seller on the first day of the following month and Company Fees will be included in invoices sent in its normal billing cycle. Subject to the foregoing, once Company receives the PC Seller’s invoice, payment will be remitted within sixty (60) days.
(ii) PC Buyer. If Customer elects to use the PC as a PC Buyer, Company will charge PC Buyer its applicable Fees for its Services. Inventory transaction amounts will be included in invoices sent in Company’s normal billing cycle with payment due within thirty (30) days of PC Buyer’s receipt of the invoice.
(iii) Any pass-through amounts related to an inventory transaction handled by Company in connection with the PC solution shall not be considered “Fees” for purposes of the Agreement, including the calculation of any limitation or cap on liability set forth herein.
4. INTELLECTUAL PROPERTY.
A. Company owns, and shall continue to own, all intellectual property and other proprietary rights in and to all portions of the Services (including, but not limited to, any and all modifications and improvements to the Services) and Company Confidential Information. Except for the limited rights set forth in Section 1.A, no transfer is made of any ownership rights or intellectual property rights associated with the Services (including, but not limited to, copyright, trademark, patent, business method and process rights, and database rights) by virtue of entering into the Agreement.
B. Customer agrees not to use, transfer, distribute, or dispose of any information contained in the Services in any manner that could compete with the business of Company. Except as otherwise provided in the Agreement, Customer may not (i) sell, resell, license, distribute, transfer, make available or otherwise exploit the Services to any third party; (ii) publicly disclose or publish any Company Data in its entirety, or the substantial equivalent of the same; (iii) use the Company Data to create inclusion/trusted lists or exclusion lists; (iv) reverse engineer or attempt to reverse engineer the Services; or (v) allow a third party to do any of the above. Customer will not remove or obscure any copyright, trademark or patent notices that appear on the Services. All rights not specifically granted to Customer hereunder are retained by Company.
5. CONFIDENTIAL INFORMATION.
A. “Confidential Information” means any proprietary business information, technical data, trade secrets or know-how, including, but not limited to research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, click through rates or conversions, finances or other business information disclosed by one party (as the “Disclosing Party”) to the other (as the “Receiving Party”) either directly or indirectly in writing or orally. Confidential Information does not include information which (i) is known to the Receiving Party at the time of disclosure to the Receiving Party by the Disclosing Party as evidenced by written records of the Receiving Party; (ii) has become publicly known and made generally available through no wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party who is authorized to make such disclosure; or (iv) is independently developed by the Receiving Party without use of Confidential Information as evidenced by written records of the Receiving Party.
B. Except as otherwise provided herein, the Receiving Party shall not, during or subsequent to the Term of the Agreement, use the Confidential Information for any purpose whatsoever other than the performance of the Services or disclose the Confidential Information to any third party. It is understood and agreed that the Confidential Information will remain the sole property of the Disclosing Party. Receiving Party shall at all times maintain as secret and confidential all Confidential Information and shall take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. In no event shall the Receiving Party publish, disclose or otherwise make accessible any Confidential Information to any third party, except as expressly contemplated hereunder, without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by the order or requirement of a court, administrative agency or other governmental body, provided that the Receiving Party first provides the Disclosing Party prompt notice of such required disclosure and maintains confidentiality to the greatest extent permissible.
C. On termination of the Agreement or at any time during or after the Term of the Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed; provided, however, that a party may retain on a confidential basis one copy of the Confidential Information in order to comply with legal or regulatory requirements and/or internal document retention policies as well as any and all (i) e-mails and any attachments contained in such e-mails and (ii) any electronic files, each of which are automatically saved. Any Confidential Information that is not returned or destroyed, including, without limitation, any oral Confidential Information, shall remain subject to the confidentiality obligations set forth in the Agreement.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
A. Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) its execution and performance of the
Agreement will not conflict or violate any provision of law having applicability to either party (including intellectual property and data privacy laws); and (iii) the Agreement will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights or general equity principles.
B. Customer Represenations and Warranties. Customer represents and warrants that Customer (i) has the full legal rights and authority in the websites and/or applications owned, operated and/or managed by Customer (“Customer Properties”) and specifically to serve ads onto the advertising inventory on such sites, (ii) has the necessary authorizations and rights to grant all licenses contained hereunder, (iii) shall use the Services solely for its legitimate business purposes as contemplated by the Agreement and any Agreement and shall not interfere with or disrupt the integrity or performance of Services or attempt to gain unauthorized access to any of the foregoing or any related systems or networks, (iv) shall not input, upload, transmit, or otherwise provide to or through the Services, any virus, trojan horse, worm, trap doors, back doors, malware, or other malicious computer code intended to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, or network of Company or the Services, (v) shall comply with all laws applicable to the Agreement, including all applicable laws, regulations and guidelines relating to privacy when applicable to Customer (including with respect to any data it collects, processes, shares, or exchanges with Company in connection with the Services); (vi) has provided any legally required notices to users and obtained any legally required consents from users in order to collect, process, share or use such user’s data in connection with its use of the Services; (vii) has implemented any legally required opt out mechanisms to collect, process, share or use any user’s data in connection with the Services, and (viii) has provided an accurate and complete description regarding the nature, quality, and source of inventory it makes available to buyers.
C. In the event Customer elects to use the PC solution, as described herein, Customer further represents and warrants that it will not exchange any data in connection with its use of the solution which constitutes “personal data,” “personal information,” or any such similar data as defined under applicable law. Company shall not be liable for any failure by Customer to comply with applicable laws, regulations, regulatory guidance, and best practices or failure to make the disclosures described in this Section 6.
D. THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INOPERABILITY OF THE SERVICES OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. ANY USE BY CUSTOMER OF THE SERVICES IS AT CUSTOMER’S OWN RISK. ANY MODIFICATION OF THE SERVICES OR COMBINATION OF THE SERVICES WITH ANOTHER PRODUCT OR SERVICES, EXCEPT AS SPECIFICALLY AUTHORIZED BY COMPANY IN WRITING, SHALL VOID ANY WARRANTY. COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY ISSUES WITH THE SOLUTION THAT ARISE FROM ANY MATERIALS OR DATA PROVIDED BY CUSTOMER, THIRD-PARTY SERVICES OR THIRD-PARTY PROVIDERS (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY DATA
PROVIDERS).
E. IN THE EVENT CUSTOMER ELECTS TO UTILIZE THE PC SOLUTION, EITHER AS A BUYER OR A SELLER, CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING: (I) THE INVENTORY MADE AVAILABLE THROUGH THE PC SOLUTION (INCLUDING THE QUALITY OF SUCH INVENTORY OR PERFORMANCE THEREOF); (II) ANY DATA OR INFORMATION TRANSMITTED, COLLECTED, PROCESSED OR EXCHANGED AS PART OF THE SOLUTION; OR (III) THE CREDITWORTHINESS OR FINANCIAL STANDING OF ANY BUYER OR SELLER. IN THE EVENT CUSTOMER REQUIRES SPECIFIC ADDITIONAL TERMS OR CONDITIONS GOVERNING THE PURCHASE OR SALE OF INVENTORY, CUSTOMER MAY NEGOTIATE AND ENTER INTO A SEPARATE AGREEMENT DIRECTLY WITH A PARTICULAR PC BUYER OR SELLER, AS THE CASE MAY BE.
7. INDEMNIFICATION.
A. Indemnification by Customer. Customer agrees to indemnify, defend and hold harmless Company and its officers, directors, employees, and affiliates (each, an “Company Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys' fees (collectively, “Losses”) awarded against a Company Indemnitee arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”) arising out of or resulting from (i) Customer use of the Services in breach of the Agreement, including a breach of any representation or warranty contained herein, except to the extent caused by a breach of the Agreement by Company, (ii) the data Customer collects, processes, shares or exchanges as part of Customer’s use of the Services, or (iii) Customer’s gross negligence or willful misconduct.
B. Indemnification by Company. Company agrees to indemnify, defend and hold harmless Customer, and Customer’s officers, directors, and employees (each, a “Customer Indemnitee”) from and against any and all Losses awarded against one or more
Customer Indemnitees arising out of or resulting from any third party Action arising out of or resulting from (i) a claim that the Services, as provided by Company without alteration by Customer, directly infringes upon any third party copyright, trademark, trade secret, or patent, or (ii) Company’s gross negligence or willful misconduct. This Section 8(B) shall not apply to the extent any Losses arise from: (a) Customer’s use of the Services in breach of the Agreement; or (b) the combination, operation, or use of the Services with any product or services not provided or authorized by Company.
C. Infringement. If the Services should become the subject of any copyright, trademark, trade secret or patent infringement claim subject to indemnification as set forth above, or Company reasonably believes that such event is likely to occur, Company, at its expense and discretion, will either: (i) secure for Customer the right to continue using the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) if Company determines in its sole discretion that it is not commercially practicable for Company to achieve (i) or (ii) above, Company will have the right to terminate the Agreement and provide Customer with a pro rata refund of any pre- paid portion of the Fees (if any). The foregoing states the entire liability of Company, and Customer sole and exclusive remedy, with respect to infringements of any copyrights, trademarks, trade secret or patents by the Services.
D. Procedure. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting complete control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in defense and settlement of such claim, action, suit or proceeding. The indemnified party may participate in any action, at its own expense, with its own counsel. The indemnifying party will not acquiesce to any judgment or enter into any settlement unless it secures a full and final release of all claims against the indemnified party.
8. LIMITATION OF LIABILITY.
EXCEPT FOR EITHER PARTY’S OBLIGATIONS OF INDEMNIFICATION, A BREACH OF CONFIDENTIALITY, A BREACH OF EITHER PARTY’S OBLIGATIONS RELATED TO DATA PRIVACY PURSUANT TO APPLICABLE LAW, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS,
(A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND
(B) EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID AND PAYABLE TO COMPANY BY CUSTOMER DURING THE MOST RECENT TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
NOTWITHSTANDING THE FOREGOING, EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING FROM CAUSES OF ACTION RELATED TO A PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR A BREACH OF A PARTY'S DATA PRIVACY OBLIGATIONS PURSUANT TO APPLICABLE LAW, WILL BE LIMITED TO AND WILL NOT EXCEED THREE (3X) TIMES THE FEES PAID AND PAYABLE TO COMPANY BY CUSTOMER DURING THE MOST RECENT TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY COSTS OF MEDIA ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES.
9. PERSONAL DATA.
In providing the Services hereunder, Company will collect and analyze the following personal data: (i) log file data, including IP address, operating system, browser type, browser id, device id, date/time of visit, and pages visited; (ii) location data, including general (i.e., non-precise) geographic location based on IP address or more precise location when accessing our online services through a mobile device; and (iii) audience viewer data, including content category, genre, content rating, and series/title information (“Customer Data”). The collection and use of such Customer Data in connection with the Services hereunder shall be further governed by the Data Protection Terms set forth at https://www.getpublica.com/eu-data-protection-terms, which shall be incorporated into the Agreement and form an integral part of the Agreement. Notwithstanding the foregoing, Integral Ad Science, Inc. shall act as the Data Importer and/or Service Provider, as applicable, in the Data Protection Terms.
Solely where Customer uses the Verification Measurement solution, Company may process Personal Data relating to digital advertisements served by Customer. This processing of Personal Data shall be governed by the Data Protection Terms set out at integralads.com/data-protection, as may be updated by Company from time to time, which shall be incorporated into the Order and form an integral part of the Order. For purposes of clarity, except as provided in the Agreement, the Personal Data processed does not contain any names, phone numbers, e-mail addresses or other contact details or information. Furthermore, Customer agrees that it will not pass to Company any health, payment card, or similarly sensitive data that imposes specific data security or data protection obligations on the processing of such data.
Company may use Personal Data as well as any other data collected, provided, or shared by Customer with Company as part of the Services to the extent necessary to provide the Services to Customer. In addition, Company may use such data in aggregated, anonymized form: (i) for the purpose of incorporating such data (along with information collected from other Company customers) in Company’s products and services and its marketing and benchmark materials; and/or (ii) in reporting provided to Company’s buy-side customers receiving CTV verification solutions, for which Company may receive consideration.
10. TERM AND TERMINATION.
A. The Agreement shall commence on the Effective Date indicated on the Order and shall continue until such time as such Order has expired or been terminated pursuant to its terms.
B. Unless expressly agreed otherwise, an Order shall commence on the effective date noted therein and shall continue for one-year (the “Initial Term”). After the expiration of the Initial Term, the Order shall automatically renew for successive one-year periods (each a “Renewal Term”) unless either party gives not less than sixty (60) days’ prior written notice of its intention not to renew. The Initial Term and any Renewal Term shall be referred to collectively as the “Term”.
C. The Agreement shall terminate thirty (30) days after a party’s receipt of written notice that such party is in material breach of any terms or conditions, unless such party cures such breach within said thirty (30) day period. Notwithstanding the foregoing, in the event Company determines, based on its reasonable, good faith judgment, that such breach by Customer is not curable within such thirty (30) day period, Company may terminate the Agreement immediately upon notice to Customer of such incurable breach.
D. Company may immediately suspend Customer's use of, or access to, the Services, without notice, (i) if it believes that there is a significant threat to the functionality, security, integrity, or availability of the Services, (ii) if it believes that Customer or Customer's users are accessing or using the Services to commit an illegal act, (iii) if Customer fails to pay undisputed Fees under an issued invoice within the time period set forth in Section 3, or (iv) if Customer fail to complete Company’s client onboarding questionnaire(s) (e.g., billing and compliance) to the full satisfaction of Company, within seven (7) days from the execution date of the applicable Order. When reasonably practicable and lawfully permitted, Company will provide Customer with advance notice of any such suspension. Company will use reasonable efforts to re-establish the Services promptly after it determines that the issue causing the suspension has been resolved. Any suspension under this paragraph shall not excuse Customer from Customer's obligation to make payments under the Agreement.
E. In addition to the foregoing, during the Term, Company may terminate the Agreement upon prior written notice to Customer of the occurrence of a GIVT/SIVT Trigger Event. For purposes of these Standard Terms, a GIVT/SIVT Trigger Event occurs when (i) Company detects (and provides written notice to Customer of) GIVT (General Invalid Traffic) and/or SIVT (Sophisticated Invalid Traffic) within Customer's inventory, measured in accordance with the Media Rating Council (MRC) standard for Invalid Traffic Detection and Filtration Guidelines, on 20% or more of Customer's ad impressions, and (ii) Customer fails to provide evidence of significant improvement in reducing such GIVT and/or SIVT measurements detected by Company within thirty (30) days of receiving such notice from Company.
F. .Either party may terminate this Order or any Order, at any time, upon the giving of written notice: (I) if the other party should become insolvent, (II) upon the filing by or against the other party of a petition in bankruptcy or reorganization, (III) upon the filing of a request for the appointment of a trustee, liquidator or receiver for such party, (IV) upon an assignment for the benefit of creditors by such party, or (V) such similar action, should said event continue for a period of sixty (60) days.
G. Obligations Upon Termination; Survival of Terms. Promptly upon expiration or termination of the Order or Standard Terms for any reason, Customer shall pay any unpaid and outstanding Fees due to Company that have accrued as of the date of expiration or termination and Customer shall cease using and remove the Services and all Company Data provided in connection with the Services. If Customer fails to cease using and/or remove all Company Data in accordance with the preceding sentence, Customer may, at Company’s option, continue to be charged at its then current Fees until such Company Data is removed. All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, intellectual property ownership provisions, warranty disclaimers, data protection, indemnity and limitations of liability.
11. EXPORT CONTROLS, SANCTIONS, AND ANTI-CORRUPTION LAWS.
Customer shall not export, re-export, transfer, or use the Services in violation of (i) the Export Administration Regulations or any other applicable export controls, (ii) applicable economic sanctions laws, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (collectively, “Sanctions”), or (iii) the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable laws related to the prevention of corruption or bribery. Customer shall ensure that the Services are not provided to or used or accessed by any person who is subject to Sanctions, including those on OFAC’s Specially Designated Nationals and Blocked Persons List, or (ii) persons resident, located, or organized in any country subject to comprehensive Sanctions. Company shall have the right to immediately terminate Services should a breach of the foregoing terms occur.
12. FEEDBACK.
If Customer or any of Customer's employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assign to Company on Customer's behalf, and on behalf of Customer's employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas,
know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
13. PUBLICITY.
A. Neither party shall (a) make any public statements or announcements, or statements to third parties, regarding the Services provided by Company under the Agreement, or (b) use the other party’s trademarks or logos, in each case, without obtaining prior written approval from the other party in each instance; provided that without such approval, Company may list Customer’s name and use Customer’s logo in Company’s list of customers.
B. At Company’s request, Customer and Company will issue a joint press release to announce the collaboration under the applicable Order, with the content to be pre-approved in writing by each party (which approval shall not be unreasonably withheld, conditioned or delayed), within one (1) month of the effective date of the applicable Order (or such other date mutually agreed upon by the parties). A party will obtain consent from the other party prior to issuance of any future press releases.
C. At Company’s request, each party will collaborate with the other party on joint customer case studies, webinars and speaking engagements in connection with the Services, with the content to be mutually agreed to by parties, which may be used in either party’s marketing activities.
14. ASSIGNMENT.
Neither party shall have the right to assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed, or conditioned, except that: (i) either party may assign its rights and obligations to a successor to substantially all its relevant assets or business or equity securities upon prior written notice to the other party; and (ii) Company may assign its rights and obligations to an affiliated entity that is owned or controlled by, or under common ownership or control with, Company upon prior written notice to Customer. Nothing in the foregoing prohibits Company from engaging subcontractors to perform services provided that Company shall remain liable to Customer for any such subcontractor’s services and work product. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder.
15. FORCE MAJEURE.
With the exception of a party’s payment obligations hereunder, neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
16. MISCELLANEOUS.
The Agreement, including any attached exhibits which are hereby incorporated by reference into the Agreement, are the entire agreement between Customer and Company with respect to the Services, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Company with respect to the Services or any
other of the subject matter hereof. Unless permitted by these Standard Terms or the applicable Order, no amendment or modification of the Agreement shall be made except by a writing signed by both parties. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. No failure of Company to enforce any of its rights under the Agreement will act as a waiver of such rights. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Excluding any claims related to an invoiced Fee as set forth in Section 3 above, neither party may bring any action for a claim arising under this Order, whether under breach of contract, warranty, negligence, or strict liability, later than one (1) year after the cause of action arose or date that the affected party knew or should have known about the cause of action. Otherwise, such cause of action is permanently barred. All notices under the Agreement will be in writing and will be deemed to have been duly given (i) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (ii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service to the address specified in the Agreement or such other address as may be properly specified by written notice hereunder; or (iii) on the day of sending, if sent by email unless the sending party receives an automated message indicating that the email could not be delivered. The Agreement shall be governed by the applicable law listed below based on the Company signatory without regard to its conflicts of law provisions and each party consents to the exclusive jurisdiction and venue in the applicable court listed below:
Company Signatory
Governing Law
Jurisdiction and Venue
Integral Ad Science, Inc. and any other Company signatory not listed below
New York
New York County, New York
Integral Ad Science UK, Limited
England and
Wales
England
Integral Ad Science UK, limited branch office Italia
Italy
Milan
Integral Ad Science GmbH
Germany
Berlin, Germany
Integral Ad Science Singapore, Pte. Ltd.
Singapore
Singapore
Integral Ad Science Japan K.K.
Japan
Tokyo, Japan
Integral Ad Science Australia Pty. Ltd.
Australia
New South Wales,
Australia