STANDARD TERMS AND CONDITIONS
1. SERVICES AND DATA PRODUCT
DataX will provide audienceOS service that includes (a) after installing the smart pixel designated by DataX and connecting Customer’s Ad Account(s) events into DataX’s CDP (“Customer Data Platform”), DataX will integrate and connect CDP to Customer’s Ad Account(s), (b) CDP will integrate and provide additional data points, not limited to, Event Match Quality Score, pixel quality, lookalike audiences and retargeting audiences with Customer’s Ads Account(s). (a) and (b), collectively the (“Subscription Services”). As part of the Subscription Services and subject to DataX’s availability, DataX will: (i) provide Customer with up two (2) hours of onboarding training at Customer’s discretion and preferred pace; (ii) be available to Customer for one thirty (30) minute video conference; (iii) use reasonable efforts to provide Customer with ad-hoc calls with Customer’s DataX success manager; and (iv) use reasonable efforts to provide other general support via email as coordinated through Customer’s DataX success manager.
2. PROFESSIONAL SERVICES AND DELIVERABLES
DataX may provide certain additional services related to the Subscription Services as set forth in a mutually executed SOW. Such services may include, but are not limited to: (i) implementation services; (ii) training for Customer personnel; (iii) file conversion services; (iv) automation of Data Product delivery; and (v) any other services specifically identified in a SOW (the “Professional Services” and together with the Subscription Services, the “Services”). For avoidance of doubt, in no event shall any component or functionality of the Application be deemed a Service under this Agreement. DataX will provide Professional Services, at Customer’s election and following Customer’s signature and DataX’s acceptance of a SOW describing the nature, scope, project assumptions, fees, duration, location(s) of the covered Professional Services, in each case in accordance with such SOW and subject to the terms and conditions of these Standard Terms and Conditions.
3. DELIVERABLES AND OWNERSHIP
DataX owns all right, title, and interest, including, without limitation, all intellectual property rights, to the Data Product, general advice, materials created or developed for, or otherwise provided to, Customer (whether developed solely by DataX and/or DataX personnel or created or developed jointly with Customer or its personnel or agents) in the course of performing Services for Customer under this Agreement, but excluding any Customer Confidential Information and Customer Data (the “Deliverable(s)”). Subject to Customer’s payment of all fees due to DataX and compliance with this Agreement, DataX hereby grants Customer a limited, nonexclusive, non transferable, non-sublicensable, worldwide, revocable license to use such Deliverables during the Term solely for its own, internal business use (the “License”). During the Term and thereafter, DataX may terminate or suspend the License in the event Customer: (a) breaches any provision of this Agreement; or (b) misuses any Deliverable(s). Customer retains all ownership rights in its Confidential Information and any other information or data provided to DataX. Except as prohibited by Section 8, DataX retains all rights to use its skill, knowledge, experience, and know-how, including, without limitation, ideas, concepts, and techniques, whether developed prior to, independently of, or in the course of performing the Services hereunder. Nothing in this Agreement shall preclude DataX from using any general information, ideas, concepts, know-how, techniques, methodologies, processes, skills or expertise derived from performing the Services or providing any work product or deliverable.
4. RESTRICTIONS
Customer must not do or attempt to do, or permit others to do, any of the following: (a) modify, port, adapt or create derivative works of the Services or any Deliverables; (b) reverse compile, reverse assemble, disassemble or print the any Deliverable’s source code or object code or other runtime objects or files or otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Deliverables; (c) rent, lease, distribute (or redistribute), provide or otherwise make available the Deliverables, in any form, to any third party (including in any service bureau or similar environment); (d) defeat, disable or circumvent any protection mechanism related to the Deliverables; (e) use the Deliverables to process the data of clients of a third party (whether on an outsourcing, service bureau, or other basis); (f) using the Deliverables or otherwise procuring the Services to build competitive products or services; or (g) publish, distribute or redistribute (whether or not for a fee), or sell any Deliverable to any individual or entity outside of Customer’s own entity. In addition, Customer shall not violate or attempt to violate the security of DataX’s networks or servers, including, without limitation, (x) accessing data not intended for Customer; (y) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempting to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing.
5. TERM AND TERMINATION
5.1. Term. This Agreement will be effective as of the Effective Date and shall remain in effect for so long as there is an effective SOW between the Parties (the “Term”). Each SOW shall renew in accordance with its terms unless terminated in accordance with this Agreement.
5.2. Pilot Period Termination. If any SOW includes a Pilot Period (as defined in the applicable SOW), Customer may terminate such SOW at the conclusion of the Pilot Period, provided that Customer provides no less than ten (10) days’ prior written notice of its intent to terminate (“Pilot Termination Right”). If Customer does not exercise the Pilot Termination Right at last ten (10) days before the end of the Pilot Period, Customer will be deemed to have waived the Pilot Termination Right.
5.3. Termination for Cause. This Agreement and/or any SOW may be terminated immediately upon written notice by the non-breaching Party if the breach is not capable of being cured or, if capable of being cured, is not cured within thirty (30) days after receipt of written notice.
5.4. Effect of Termination Notice. Termination or expiration of the Agreement by Customer will also terminate (a) any then-current SOW(s) unless otherwise agreed by the Parties, and (b) the License.
5.5. Obligations on Termination. Upon any termination or expiration of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) subject to the final sentence of this Section 5.5, within thirty (30) days of the termination or expiration of this Agreement, delete the other Party’s Confidential Information from its computer storage or any other media; (iii) return to the other Party or, at the other Party’s option, destroy, all tangible copies of such Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and owing hereunder. Notwithstanding the foregoing, neither Party will be required to delete any Confidential Information of the other Party that may reside in any automated backup files or to the extent such Party is required to maintain any such Confidential Information for audit purposes or to comply with applicable law, provided that such Confidential Information will continue to be subject to the confidentiality obligations of this Agreement notwithstanding the termination or expiration of this Agreement
6. PAYMENT AND INVOICING
6.1. Services. The fees for the Services will be set forth in the applicable SOW. Unless otherwise set forth in a SOW, fees for Subscription Services will be due upon the Effective Date and each thirty (30) days thereafter. Fees for Professional Services will be due upon the effective date stated on the applicable SOW. All amounts due hereunder will be invoiced and paid in US Dollars.
6.2. Expense Reimbursement. Customer will also reimburse DataX for all travel and subsistence expenses and for other reasonable project support expenses. All expenses will be listed on DataX’s invoice and will be due and payable within thirty (30) days of receipt of invoice.
6.3. Taxes. Customer will be responsible for applicable excise, sales and use or other taxes as required by law on Services provided by DataX to Customer under this Agreement. DataX will pay all taxes collected from Customer to the appropriate tax authority. If DataX fails to properly invoice Customer for applicable taxes on the original invoice for goods and services, Customer will not be responsible for payment of such taxes to DataX, and instead, will remit all such taxes directly to the applicable tax authority.
7. REPRESENTATIONS AND WARRANTIES
7.1. DataX Representations and Warranties; Disclaimer. DataX warrants and covenants that the Services will be performed in a professional and workmanlike manner. DATAX DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
7.2. Customer Representations and Warranties. Customer represents, warrants, and covenants that: (a) it is a validly organized entity under the laws of the jurisdiction of its incorporation and has the authority to enter into this Agreement; (b) it has all right, power, and authority necessary to enter into this Agreement, perform its obligations hereunder and grant the rights it grants to DataX hereunder, including, without limitation, that it has obtained all legally and contractually required right and/or permission to provide information and/or data to DataX as necessary for DataX to provide the Services; and (c) its performance of this Agreement, and DataX’s exercise of its rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound or any applicable law, rule, or regulation.
8. CONFIDENTIALITY
8.1. Disclosure. The Parties acknowledge that, in the course of performance of this Agreement, one Party (“Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other Party (“Receiving Party”) and its personnel for the purposes agreed under this Agreement. “Confidential Information” means information and technical data derived from or disclosed to a Receiving Party by the Disclosing Party or its employees, vendors, customers, representatives, affiliates, agents and other independent contractors during the performance of obligations under this Agreement and which is not generally known to the public, including the Disclosing Party’s and its affiliates’ customers or competitors. Examples of Confidential Information include, without limitation, business plans, specifications, designs, methods, processes, ideas, concepts, drawings, software, pricing, operational plans and know-how, employee information, shareholder information, vendor information, customer information, and consumer information whether disclosed in oral, written, graphic or machine-readable form, or in forms otherwise embodying or displaying such information, but exclude Customer Data.
8.2. Confidential Treatment. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party for the Term of the Agreement and for two (2) years thereafter. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care.
8.3. Allowances and Exceptions. Notwithstanding anything to the contrary in this Section 8, Confidential Information may be disclosed by a Receiving Party: (a) to its employees, agents, and consultants who require it in connection with such Party’s obligations under this Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement; (b) to the Receiving Party’s auditors, outside counsel, accountants and other similar business advisors, or in connection with an assignment or transfer permitted without consent under Section 11.7; and (c) to the extent required by law, provided that: (i) the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances. Obligations under this Section 8 will not apply to information which: (1) was publicly available prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes publicly available before any wrongful act of the Receiving Party or its employee or agent; (2) was in the possession of the Receiving Party without breach of any obligation hereunder prior to receipt from the Disclosing Party; (3) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; (4) is developed by the Receiving Party independent of the Disclosing Party’s Confidential Information; or (5) has previously been disclosed by the Disclosing Party to third parties without obligation of secrecy.
8.4. Remedies. If the Receiving Party or its personnel has disclosed, or is threatening to disclose, any Confidential Information in breach of this Agreement, the Disclosing Party will be entitled to seek an injunction to prevent the Receiving Party personnel from disclosing Confidential Information, or to prevent the Receiving Party personnel from providing any services to any third party to whom such Confidential Information has been or may be disclosed. The Disclosing Party will not be prohibited by this provision from pursuing other remedies.
9. PRIVACY AND SECURITY
DataX shall implement and maintain reasonable information security measures and policies intended to safeguard the security of Customer Data. By providing Customer Data to DataX, Customer grants DataX the nonexclusive, worldwide, transferable right, on a royalty-free basis, to possess, store, use, copy, distribute and process Customer Data solely for the purposes of fulfilling DataX’s obligations and/or exercising DataX’s rights hereunder. This right may be sublicensed only to third parties directly or indirectly assisting DataX in providing the Services or otherwise fulfilling DataX’s obligations hereunder. For avoidance of doubt, the Parties acknowledge and agree that unauthorized access to or loss of Customer Data shall not constitute a breach by DataX of its confidentiality obligations under this Agreement. Customer is responsible for the security of its own computer and IT systems.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1. Mutual Indemnification Obligations. Each Party (the “Indemnifying Party”) will indemnify, defend and hold the other Party, its directors, officers, employees and agents (collectively, the “Indemnified Party”) harmless against: (a) claims by employees, agents or subcontractors of the Indemnifying Party for personal injury, death, or property damage sustained by such employees, agents or subcontractors while performing Services pursuant to this Agreement; or (b) third party claims arising out of or in connection with the Indemnifying Party’s breach of its warranties and representations hereunder; provided, however, that if there is also fault on the part of the Indemnified Party or any entity or individual acting on behalf of such Indemnified Party, the foregoing indemnification will be on a comparative fault basis.
10.2. IP Infringement Indemnification. Subject to the limitations of liability in Section 10.4, DataX shall indemnify and hold harmless Customer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Customer against, pay any final judgments awarded against Customer, and pay Customer’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on DataX’s alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party under the laws of the United States arising out of the Data Product, unless and except to the extent that such infringement is caused by (a) modification of the Data Product by anyone other than DataX, (b) DataX’s compliance with Customer’s unique specification or instructions, (c) DataX’s use of trademarks, Customer Confidential Information, Customer Data, or other materials supplied by Customer, (d) use of any Data Product in connection or in combination with equipment, devices, or software not provided by DataX (but only to the extent that such Data Product alone would not have infringed); or (e) the use of any Data Product other than as permitted under this Agreement or in a manner for which it was not intended.
10.3. Notice of Claim. The indemnified Party will provide the indemnifying Party with prompt notice of any claim for which indemnification will be sought hereunder and will cooperate in all reasonable respects with the indemnifying Party in connection with any such claim, at the indemnifying Party’s expense. The indemnifying Party will defend the indemnified Party at the indemnified Party’s request, provided that failure to give notice will not relieve indemnifying Party of its obligations under this Section 9. The indemnifying Party will be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing, except that any settlement for other than money damages will be subject to the approval of the indemnified Party, which approval will not be unreasonably withheld.
10.4. Limitation of Liability. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.1 AND 10.2, DAMAGES ARISING FROM CUSTOMER’S BREACH OF SECTION 4, AND DAMAGES ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY, THEIR SHAREHOLDERS, AFFILIATES, PARENT COMPANIES, CONTROLLING COMPANIES, PRINCIPALS, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR A THIRD PARTY FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES, OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DATA, AND OPPORTUNITY COSTS). EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.1, DAMAGES ARISING FROM CUSTOMER’S BREACH OF SECTION 4, OR DAMAGES ARISING AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY, THEIR SHAREHOLDERS, AFFILIATES, PARENT COMPANIES, CONTROLLING COMPANIES, PRINCIPALS, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR A THIRD PARTY FOR ANY ACTIONS, DAMAGES, CLAIMS, LIABILITIES, COSTS, EXPENSES, OR LOSSES IN ANY WAY RISING OUT OF OR RELATING TO THE SERVICES UNDER AN APPLICABLE SOW FOR AN AGGREGATE AMOUNT IN EXCESS OF THE FEES PAID BY CUSTOMER TO DATAX UNDER THE APPLICABLE SOW UNDER WHICH LIABILITY AROSE IN THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, DATAX WILL NOT BE LIABLE IN RESPECT OF (A) ANY DECISION MADE BY CUSTOMER AS A RESULT OF THE PERFORMANCE BY DATAX OF THE SERVICES PROVIDED UNDER ANY SOW OR (B) CUSTOMER’S MISUSE OF THE PERFORMED SERVICES, INTELLECTUAL PROPERTY OR OTHER DATA PROVIDED BY DATAX IN CONNECTION WITH THE SERVICES. THE PROVISIONS OF THIS SECTION 10.4 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.
10.5. MISCELLANEOUS
10.6. Relationship of Parties. It is understood by the Parties that DataX is an independent contractor with respect to Customer, and that neither this Agreement, nor any SOW forms a partnership, joint venture or employment relationship between the Parties. Customer recognizes that DataX may be or become engaged to perform services that are similar to the Services for other parties, including parties in Customer’s market area or with which Customer or its affiliates compete. Nothing in this Agreement or any SOW precludes DataX or any of its personnel from being engaged by any other party, including a competitor of Customer, for any purpose or in any manner.
10.7. Attorneys’ Fees. In any suit or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and will survive and not be merged into any such judgment.
10.8. Force Majeure. No Party will be liable for the failure to perform or delay in the performance of its obligations under this Agreement, except for payment obligations, to the extent such failure or delay is caused by or results from a force majeure event and the occurrence of such force majeure event(s) is reasonably provable. A “Force Majeure Event” means an event caused by a circumstance beyond a Party’s reasonable control, including, but not limited to: natural catastrophes, war, public power outages, civil unrest, terrorism, labor strikes or shortages (strikes and other labor unrest that affect only a Party, a Party’s financial hardship, an increase in prices, or a change of law will not constitute an excusable delay), and governmental action, provided that the delay or failure to perform cannot reasonably be circumvented by the non-performing Party through the use of other means. If a Party delays its performance or is unable to perform under this Agreement due to a Force Majeure Event, it will immediately notify the other Party and will also promptly notify the other Party when the Force Majeure Event (or its impact on such Party) has been abated.
10.9. Notices. All notices required or permitted under this Agreement will be in writing and will be deemed delivered if delivered in person or by overnight courier service to the addresses set forth above. Such address may be changed by either Party by providing written notice to the other in the manner set forth above.
10.10. Amendment. This Agreement may only be modified or amended through a tangible writing signed by both Parties.
10.11. Construction. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provisions will be deemed to be written, construed and enforced as so limited.
10.12. Assignment and Subcontracting. Customer will not, directly or indirectly, by assignment or change of control or otherwise, transfer this Agreement or any of its rights or obligations hereunder or under any SOW without the prior written consent of DataX. DataX will have the right to assign its rights and obligations hereunder to: (a) a DataX affiliate or (b) in connection with any change of control, merger, acquisition, or other transaction involving the sale of all or substantially all of DataX’s assets without Customer’s consent. This Agreement will inure to the benefit of and bind the permitted successors and assigns of the Parties. Assignments made in violation of this Section 11.7 will be null and void. DataX may subcontract its obligations under this Agreement without restriction.
10.13. No Waiver of Contractual Right. The failure of either Party to enforce any provision of this Agreement will not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver or consent given on one occasion is effective only in that instance and will not be construed as a bar to or waiver of any other right on any other occasion.
10.14. Execution in Counterparts and by Electronic Means. This Agreement may be executed in counterparts and by electronic means (facsimile, electronic signatures, or digital image delivered by email) and the Parties agree that such electronic means and delivery shall have the same force and effect as delivery of an original document with original signatures.
10.15. Compliance With laws. Both Parties will comply with all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements in effect now and at any time during the Term that relate to its performance under this Agreement.
10.16. Governing Law. This Agreement and all SOWs entered into by the Parties hereunder will be governed and interpreted in accordance with the laws of the State of Wyoming, without regard to its conflicts of laws rules. Customer and DataX agree that all actions and proceedings related to this Agreement or an applicable SOW will be brought only in a state or federal court located in Sheridan County, Wyoming, and Customer and DataX hereby consent to such venue and to the jurisdiction of such courts over the subject matter of such proceeding and themselves.
Survival. Sections 3, 4, 5, 6, 8, 10, and 11 will survive any termination of this Agreement.