These Media Curation Service Terms (“Service Terms”) apply to the use of the Media Curation Services (“Services”) provided by P39 Tech, LLC (“Peer39”) unless Peer39 and the user of the Services (“Buyer”) have mutually agreed upon different terms in writing. By signing an order for or using the Media Curation Services (“Order”), Buyer agrees that these terms will govern Buyer’s relationship with Peer39 with respect to, and will govern Buyer’s use of, the Media Curation Services. If you do not agree with all of these terms and conditions, you may not use the Media Curation Services. These Service Terms, together with each Order executed by the Parties that incorporates these Service Terms, is a separate and independent agreement entered into by and between Peer39 and the Buyer (“Agreement”), effective on the Order Start Date as provided in the Order. Peer39 and Buyer are referred to in this Agreement individually as a “Party” and together as the “Parties”.
Peer39’s Media Curation Services enable buyers to purchase curated sets of digital advertising inventory (“media”) efficiently. Peer39’s technology categorizes media according to various attributes and enables the categorized sets of media to be purchased on various online media buying platforms. As used in these Service Terms, “Platform” means a third party media-buying platform selected by Buyer. The Platforms are offered by various third parties (each a “Platform Provider”). References to “Platform Service” mean the Platform services provided by a Platform Provider. Buyer wishes to use the Services and Peer39 agrees to provide them for the Fees specified in the Order. The Services may be described in more detail in the Order.
1.1. Peer39 will provide the Buyer with the Services for use on Buyer’s Platforms. To enable the delivery and use of the Services, each Party is responsible for establishing and maintaining its relationship with the applicable Platform Providers and the rights necessary to use their Platform with the Services.
1.2. Buyer will use the Services on their Platform solely for the purpose of purchasing media made available in such Platform and may not use the Services, Platform, or any data received through the Services or Platform for any other purposes not expressly permitted by this Agreement and the applicable terms and conditions of the Buyer’s Platform.
1.3. Peer39 will provide Buyer with remote support to resolve technical issues with the Services.
2. Fees and Payments
2.1. Both Parties hereby acknowledge and agree that all Fees shall be calculated based on the number of impressions reported by Peer39’s Platform Provider. “Fees” means all fees, costs, and charges payable by Buyer under the Order or these Service Terms.
2.2. Buyer hereby acknowledges and agrees Buyer is solely responsible for all costs and fees associated with the use of their Platform Provider, including without limitation all costs of purchased media and third party data charged by Buyer’s Platform Provider.
2.3. Peer39 will invoice Buyer monthly for the Fees incurred in the previous month. Buyer shall pay Peer39 the Fees specified in the invoice in United States Dollars no later than thirty (30) days after receipt of Peer39’s invoice.
2.4. Any payment not received when due shall bear a monthly interest rate equal to one and a half percent (1.5%) from the date when payment was due until the actual date that the payment has been received by Peer39. In addition, all collection expenses incurred by Peer39 with regards to the collection of a delayed payment shall be reimbursed by the Buyer upon demand from Peer39.
3. Term and Termination
3.1. This Agreement shall be in effect during the Order Term specified in the Order unless terminated earlier pursuant to Section 3.2.
3.2. Either party may terminate this Agreement upon 15 calendar days’ prior written notice with or without cause.
3.3. Fees shall be incurred for all use of the Services by Buyer. Termination or expiration of this Agreement shall not relieve Buyer from any of its payment obligations hereunder.
3.4. Upon termination of this Agreement, Buyer shall immediately remit any Fees owed to Peer39; any licenses granted to Buyer hereunder shall immediately terminate and Buyer shall not have access to, and shall not access, the Services on the Platform or use any data received during any time from the Services. Each party shall return or destroy, as requested by the other party, all Confidential Information (as defined herein) relating to the other party then in its possession. In the event that termination of this Agreement occurs during an ongoing campaign, Buyer shall be responsible for removing Peer39 Services data and alter the campaign in such a manner to cease using the Services. If Buyer continues to use the Services after termination of this Agreement, Buyer shall pay Peer39 a penalty in the amount of two times (2x) the monthly Fees owed for the last month of the Term for each month that Buyer continues using the Services after termination of the Agreement.
4.1. Peer 39 hereby grants Buyer a revocable, limited, non-transferable, non-exclusive license to use the Services on the mutually-agreed Platform solely for the limited purpose of buying media identified for Buyer by the Services. Peer39 is the exclusive owner of all rights, title and interest in and to the registered trademarks, service marks, trade names, and logos of Peer39, the Peer39 technology (and all software, databases and other aspects and technologies related to the Peer39 technology, including any enhancements, modifications, improvements, or derivatives thereto) and any materials provided or made available to Buyer by Peer39. Except as expressly stated herein, no rights, license, title or interest to any of the foregoing or any other proprietary rights, intellectual property or Confidential Information (as defined herein), express or implied, are granted by Peer39 to Buyer under this Agreement.
4.2. Buyer hereby grants Peer39 and the Platform Provider a limited license to all necessary rights, licenses, consents, waivers and permissions to allow Platform to store, audit, optimize and deliver ad units to the media and otherwise operate the Service and Platform Services on Buyer’s behalf. This license supplements, but does not modify or replace, any licenses Buyer has granted under separate agreements between Buyer and the Platform Provider (“Platform Agreements”).
5. Buyer’s Representations and Warranties
5.2. Buyer acknowledges that certain products within the Platform transact in real time, and bids and offers may compete simultaneously against multiple other ads and offers. Buyer further acknowledges and agrees that Buyer is solely responsible for accurately entering all applicable advertising campaign data, including without limitation the bidding criteria, into the Services and Platform, and Buyer has no recourse for any transaction that does or does not occur based upon Buyer errors including erroneous data provided by Buyer, and there is no guarantee regarding the level of impressions of the ad units, the timing of delivery of such impressions or the amount of any payment to be made or due thereunder.
PEER39 DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING (a) THE PEER39 TECHNOLOGY; (b) THE SERVICES TO BE PROVIDED HEREUNDER; (c) THE PLATFORM; (d) THE SUCCESS OF SUCH SERVICES, TECHNOLOGY OR PLATFORM, AS MEASURED IN ANY WAY; (e) ANY INFORMATION, CONTENT, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH THE PEER39 TECHNOLOGY, SERVICES OR PLATFORM OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. PEER39 HEREBY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PEER39 TECHNOLOGY, SERVICES ADVERTISED, THE PLATFORM PROVIDER OR THE PLATFORM; AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Each Party (the “Indemnitor”) shall indemnify, defend and hold harmless the other Party (the “Indemnitee”) and each of the Indemnitee’s advisors, agents, directors, managers, affiliates, officers, members, employees, successors and assigns from and against any claims by third parties for losses, damages (compensatory and punitive), liabilities and expenses (including, but not limited to, reasonable costs of investigation and reasonable legal counsel fees) arising out of or in any way connected with (a) the breach of any representation, warranty or agreement made by the Indemnitor hereunder; (b) any claims that the Indemnitor infringed upon a third party’s intellectual property rights and (c) the Indemnitor’s gross negligence or willful misconduct. The foregoing obligations are conditioned on the Indemnitee: (i) giving the Indemnitor notice of the relevant claim; (ii) cooperating with the Indemnitor, at the Indemnitor’s expense, in the defense of such claim; and (iii) giving the Indemnitor the right to control the investigation, defense and settlement of any such claim, except that the Indemnitor will not enter into any settlement that affects the Indemnitee’s rights or interest without the Indemnitee’s prior written approval. The Indemnitee will have the right to participate in the defense at its own expense. Buyer shall indemnify, defend and hold harmless Peer39 and each of the Peer39’s advisors, agents, directors, managers, affiliates, officers, members, employees, successors and assigns from and against any claims by third parties for losses, damages (compensatory and punitive), liabilities and expenses (including, but not limited to, reasonable costs of investigation and reasonable legal counsel fees) arising out of or in any way connected with Buyer-provided content or materials, including media purchased or ads placed by Buyer using the Services.
8. Limitation of Liability
OTHER THAN INDEMNIFICATION OBLIGATIONS OR FEES OWING HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES.
OTHER THAN FOR ANY AMOUNTS RELATING TO INDEMNIFICATION OBLIGATIONS OR FEES OWING HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT GREATER THAN THE AGGREGATE AMOUNT OF THE FEES DUE TO PEER39 HEREUNDER IN THE IMMEDIATELY PRECEDING THREE MONTH PERIOD.
9.1. For the purposes of this Agreement, the term “Confidential Information” means non-public information about the disclosing Party or its business (including information from or about third parties or shared by third parties on behalf of a Party) or activities that is proprietary and confidential, which shall include, without limitation, any information or data obtained through the Services and Platform, all information of a Party marked or designated “confidential” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential, and the existence of and the terms of this Agreement. Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the receiving Party can establish that it knew prior to receiving such information from the disclosing Party, or (d) the receiving Party can establish that it developed independently.
9.2. Each Party agrees (a) that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which in no event will be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Each Party acknowledges any unauthorized disclosure or unauthorized use of Confidential Information by the receiving Party will cause irreparable harm and loss to the disclosing Party. In the event of any actual or threatened breach of this Section by a receiving Party, the disclosing Party shall be entitled to seek emergency interim relief prohibiting disclosure of its Confidential Information, which action shall not restrict or limit any other remedies legal or equitable that the disclosing Party determines to seek. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or on a “need-to-know” basis under an obligation of confidentiality to its attorneys, accountants, banks and other financing sources and their advisors. Each party may disclose to the other party certain confidential or propriety information or trade secrets not commonly known to the general public (the “Information”). All Information shall remain the sole property of the disclosing party and shall be protected against subsequent disclosure by the receiving party with at least the same degree of care used to protect its own Information.
9.3. Upon entering this Agreement, the parties anticipate issuing a press release. The parties will mutually agree on any press releases pertaining to the existence of or the terms of this Agreement, the relationship of the parties or any other agreements thereof.
10. Other Terms
This Agreement may not be amended without the prior written consent of the parties hereto.
Peer39 may assign any of its rights or obligations under this Agreement. This Agreement may not be assigned by the Buyer without Peer39’s prior written consent.
10.3. Independent Contractors
Nothing contained in this Agreement will be construed as creating a joint venture, partnership or employment relationship between the parties hereto, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
10.4. Force Majeure
Except with respect to payment obligations, neither party will be liable for any failure to perform due to causes beyond the party’s reasonable control.
All notices or other communications required under or regarding this Agreement shall be in writing and shall be deemed sufficient when delivered personally or via reputable overnight courier, or sent by electronic mail or facsimile (in each case, with prompt confirmation of receipt), or upon deposit in the U.S. mail, as certified or registered first class mail, with postage prepaid, and addressed, to the Parties at their respective addresses set forth in the Order, unless, in either case, written notice of another address shall have been provided to the other party in the manner provided for in this Section. If mailed, any such notice will be considered to have been given one business day after it was mailed, as evidenced by the postmark.
10.6. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. The relevant competent courts in New York, New York shall have the sole and exclusive jurisdiction in connection with this Agreement.
10.7. Entire Agreement
This Agreement (including the Order) shall constitute the entire agreement between the parties with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby.
10.8. Failure to Enforce not a Waiver
No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of subsequent breaches.
10.9. Survival of Certain Provisions
The rights and responsibilities of the Parties under this paragraph and under of the following sections of these Service Terms: Section 2 (to the extent of any amounts then due and payable to Peer39), Sections 5, 6, 7, 8 and 9, and any other provision of this Agreement which expressly contemplates performance or observance subsequent to any expiration or termination of this Agreement, shall survive termination or expiration of this Agreement indefinitely.
Last Updated January, 20th 2020