Eskimi operatesa technology solution (the “Eskimi Platform”) which allows RegisteredBidders (as defined below) to engage in real-time auctions (“Auctions”)to place advertising content on web sites, connected tv applications, mobileweb sites or mobile applications (“Target Sites”) provided by contentpublishers or providers of mobile and connected television applications (“ContentProviders”).
These GeneralTerms and Conditions (the “General Terms”) shall be applicable to the Companies(“Company”) that have signed the Main Terms Sheet (the “Main Terms’), whichtogether with these General Terms shall constitute an entire Master ServiceAgreement for Eskimi Ad Exchange Services (the “Agreement”).
Byentering into Agreement, the Company, following the technical set-upimplemented by Eskimi and the Company, may gain access to Eskimi Platform inorder to become a Registered Bidder (DSP) and/or a Content Provider (SSP) andto participate in Auctions from time to time, subject to the terms andconditions set forth herein.
(a) “Advertising” means advertising or othercontent proposed to be distributed to TargetSites.
(b) “Bid” means a bid for Ad Inventory made by aRegistered Bidder in an Auction via EskimiPlatform.
(c) “Documentation”means the description of the rules and procedures for conduct of the Auctionset forth on the Auction Platform, as such rules and procedures may change fromtime to time.
(d) “AdInventory” means space offered for the placement of Advertising to the Winning Bidder.
(e) “Performance Data” means any data that DSPcollects pertaining to the performance of specificAdvertising on the applicable Ad Inventory, including “clicks” or end userinteraction with Advertising, impression counts, http header information, andconversion tracking, but excluding Device Identifiers.
(f) “Personally-Identifiable Information” means anydata used or intended to be used to identify,
contact orprecisely locate a person, inkling the User’s name, address, telephone number,email address, financial account number, and government-issued identifier.
(g) “Registered Bidder” means a person or entitythat executes the agreement with Eskimi in order to use the Eskimi Platform toparticipate in Auctions and to place its Advertising in the Ad Inventory forwhich such Registered Bidder is the Winning Bidder.
(h) “Targeting Data” means data or informationavailable for Ad Inventory provided by Content Providers and received by DSPthrough its participation in an Auction (e.g., age, gender, zip code). Targeting Data does notinclude the Device Identifier.
(i) “Target Site Data” means data or informationobtained DSP through its participation in the Eskimi Platform that identifiesor allows identification of a Target Site, its brand or Users. Target Site Data does not include TargetingData, Device Identifier, or clickstream data relating to a User’s interaction with Advertising.
(j) “User” means any natural person that is avisitor to, or other end-user of, any website, portal, device, application, orother online service or the means (e.g., computer, mobile telephone, orbrowser) used by such natural person or other end- user to visit, access, oruse any such website, portal, device, application, or other online service.
(k) “User Data” means information that is specificto or attributable to a User, including location, or Device Identifier that,without associating it with other information, cannot be used to uniquelyidentify, contact, or precisely locate such User.
(l) “Winning Bid” means a Bid which is selected asthe winning Bid by the Eskimi Platform according to the rules and proceduresset forth in the appendix, as in effect from time to time.
(m) “Winning Bid Price” means the price at whichthe Eskimi Platform awards the Winning Bidderwith the Winning Bid.
(n) “Winning Bidder” means the Registered Bidderthat participates in an Auction and is selected as the winning Registered Bidder by the Eskimi Platform accordingto the rules and procedures set forth in the Appendix, as in effect from timeto time.
2.1. Subject to the terms and conditions of thisAgreement, ESKIMI shall provide Eskimi Platform service by granting to Company,for the Term of this Agreement, a non- exclusive, non-transferablenon-assignable right to access and use the Eskimi Platform, solelyfor the purposes of (i) bidding on the placementof Bidder’s Advertising on the Ad Inventory at Target Sites and/or (ii) providing AdInventory for the placement of Advertising to the Winning Bidder pursuant to the Eskimi Platform(the “Services”).
2.2. Ownership of Eskimi Platform. No licenses toany intellectual property rights of Eskimi are granted or shall be impliedhereunder except to the extent necessary for exercise of its rights underClause 2.1. Company agrees and acknowledges that Eskimi(or its third-party providers) retains ownership of all right, title andinterest to all portions of the Eskimi Platform and all intellectual propertyrights therein, and that, other than the license granted herein, Company shallnot obtain or claim any rights in or ownership interest to the Eskimi Platform,or any associated intellectual property rights.
2.3. Company hereby agrees to use the EskimiPlatform solely for the Service and will not sell, lease, store or provide,directly or indirectly, the Eskimi Platform or any portion thereof to any thirdparty. Company hereby agrees that it shall not in any way tamper with thefunctionality of the Eskimi Platform or to copy or print pages from the EskimiPlatform or their content except where expressly permitted on the EskimiPlatform. Without limiting the foregoing, Company agrees not to directlytransmit any material to the Eskimi Platform that contains any viruses, Trojanhorses, worms, or other computer programming routines that may damage,interfere with, intercept, copy or misappropriate any system, data orinformation relating to the Eskimi Platform. Company may not modify, copy,distribute, transmit, display, perform, reproduce, publish, license, reverseengineer, decompile, create derivative works from, transfer, or sell any the EskimiPlatform or any component thereof. Without limitation, Company shall not makeany speculative, false, or fraudulent posting of information or Bids.Fraudulent posting of such information will be considered a breach and shallresult in immediate termination of Company’s access to the Eskimi Platform. Itis hereby agreed that for the Advertising, Ad Inventory, content and/ormaterials owned or provided by any ofCompany’s affiliates, agents and/or any other third party (collectively the“Affiliates”), Company’s sole responsibilities and/or obligations, with this Clause2.3, will be to obtain contractual representations from its Affiliates, thatsuch Affiliates will comply with the same restrictions as stated herein.
2.4. Eskimi may, in its sole discretion, withnotice, temporarily or permanently suspend the operation of Company’s use ofthe Eskimi Platform without any liability of Eskimi to the Company.
3.1. Payment of Winning Bid Amount. For each WinningBid for which the DSP is the Winning Bidder,DSP shall pay the Winning Bid Price as displayed in the Eskimi Platform to Eskimiwithin forty-five (45) days of the end of the calendar month in which suchWinning Bid occurred.
3.2. Payment by Eskimi to SSP/Publisher. Allpayments by Eskimi shall be made within ninety (90) days after the receipt ofthe invoice from the Company, however only if the payments are received fromthe Winning Bidders in relation to the Service.
3.3. Taxes and Expenses. Each Party shall be solelyresponsible for any taxes, costs or expenses it incurs in connection with performance of its obligations underthis Agreement.
3.4. All fees and will be calculated and paid in USD.
3.5. All payment amountsare not final until full adjustments are made. Finalpayment amounts along with reasonably detailed calculationswill be reported by the 10th of every following month. All reported amounts for the purposesof billing wouldbe based on theEskimi Platform reports.
3.6. The minimum threshold of payment by Eskimi tothe Company is 500$. All monthly payments lower than 500$ will be added to thenext month's invoices until the minimum threshold will be reached.
3.7. Payment Netting. If on anydate, properly documented and established amounts would otherwise be payable toor by a Party to another Party, then, on such date, each such Party’sobligation to make payment of any such amount shall be automatically satisfiedand discharged and, if the aggregate amount that would otherwise have beenpayable by one Party exceeds the aggregate amount that would otherwise havebeen payable by such other Party, then such obligation shall be replaced by anobligation of the Party owing the larger aggregate amount, which obligationshall be equal to the difference between the larger aggregate and the smalleraggregate amount.
4.1. Targeting Data and User Data may be used by theCompany solely for (i) the purpose of informing decisions related to bidding onAd Inventory pursuant to the terms of this Agreement, and (ii) forecastingpurposes.
4.2. The Company will not use Target Site Dataassociated with Ad Inventory to create or add to User profiles or targeting segments that identify visitors to theTarget Site.
4.3. Performance Data may be used for internalpurposes by the Company, including but not limited to optimization, forecasting and analytics, and externally (i)to support reporting requirements of DSP to its Affiliates and other advertisercustomers, and (ii) on an anonymous, aggregated basis, as part of case studiesor similar published materials, provided that such Performance Data does notidentify, permit identification of, and is not otherwise attributed orattributable to the SSP or any ContentProvider.
5.1. Company Representations and Warranties. Companyrepresents and warrants to ESKIMI that:(i) Company has all necessary rights for Advertising, Ad Inventory, andtechnology for the purposes described herein; (ii) Company has the power andauthority to enter into and perform Company’s obligations under this Agreement and this Agreementhas been duly authorized under Company’s organizational documents and by-laws;(iii) Company is subject to no contractual or legal restrictions that wouldimpair its ability to perform its obligations under this Agreement.
5.2. Eskimi Representations and Warranties. ESKIMI represents and warrants to Company that: (i) Eskimi has all necessary rights to the EskimiPlatform, and agreements in place with the Content Providers and RegisteredBidders for the purposes of this Agreement, as it may be applicable; (ii) Eskimi has the power and authority to enter into andperform its obligations under this Agreement and this Agreement has been dulyauthorized under Eskimi organizational documents and by- laws; and (iii) to thebest of Eskimi knowledge, it currently has no restrictions that would impairits ability to perform itsobligations under this Agreement.
5.3. DISCLAIMER - EXCEPT AS EXPRESSLY SET FORTH INTHIS SECTION 5, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND AND EACH PARTYHEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT ANDFITNESS FOR A PARTICULAR PURPOSE.
5.4. Eskimi shall not be responsible for emergencycases and will not assume responsibility for server downtime, server delayedresponse time, network issues, or any other issues caused by interruption orintermittent issues of the underlying third-party hosting service provider.
Each Party agrees that all business,technical and financial information it obtains from the other Party is theconfidential property of the disclosing Party (“Confidential Information” ofthe disclosing Party). Except as expressly allowed herein, the receiving Partywill hold in confidence and not use or disclose any Confidential Information ofthe disclosing Party. The receiving Party shall not be obligated under thisSection 7 with respect to information the receiving Party can document: (i) isor has become readily publicly available without restriction through no faultof the receiving Party or its employees or agents; (ii) is received withoutrestriction from a third party lawfully in possession of such information; (iii) was rightfully in the possessionof the receiving Party without restriction prior to its disclosure by the otherParty; or (iv) was independently developed by employees or consultants of thereceiving Party without access to such Confidential Information.
7.1. DISCLAIMER. EXCEPT FOR ANY CLAIMS ARISING FROM(I) WILLFUL MISCONDUCT, (II) BREACHOF SECTION 6 (CONFIDENTIALITY) AND/OR (III) THE INDEMNIFICATION OBLIGATIONS INSECTION 8 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTYUNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANYSPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR BUSINESS ARISINGOUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY COST OFPROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
7.2. LIMITATION. EXCEPT FOR ANY CLAIMS ARISING FROM(I) WILLFUL MISCONDUCT,(II) BREACHOF SECTION 6 (CONFIDENTIALITY) AND/OR (III) THE INDEMNIFICATION OBLIGATIONS INSECTION 8 HEREOF, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALLCLAIMS, IN THE AGGREGATE, ARISING UNDER OR ELATING TO THIS AGREEMENT IS LIMITEDTO THE WINNING BID PRICES PAID TO SSP BYDSP UNDER THIS AGREEMENT IN THE THEN-PRIOR SIX (6) MONTH PERIOD.
8.1. Company agrees to defend, indemnify, and hold Eskimiand its officers, directors, employees, agents and representatives(collectively, “Eskimi Indemnified Parties”) harmless from any third party liability, damages,costs and expenses, including reasonable attorneys’ fees, awarded to such third party by a court of applicable jurisdiction arising from: (i) a breach of any material representation or warranty providedby Company under this Agreement; (ii) a claim that the Advertising, Companytechnology or related content infringes or misappropriates any third partyintellectual property right; or (iii) a claim that the Advertising or related contentis libelous or defamatory or otherwise violatesthe rights of any thirdparty. Eskimi will promptly notify Company in writing of any such claim. Eskimshall give Company sole controlover the defenseand/or settlement of any such claim, exceptthat Company will notagree to any settlement or compromise that would require any of the ESKIMIIndemnified Parties to make any payments or bear any obligations unless Company obtainsESKIMI ’s prior writtenapproval. Eskimi shall give Company reasonable assistance in suchdefense at Bidder’s expense.
8.2. Eskimi agrees to defend, indemnify, and holdCompany and its officers, directors, employees, agents and representatives (collectively, “Company Indemnified Parties”) harmless from any third party liability, damages, costs andexpenses, including reasonable attorneys’ fees, awarded to such third party bya court of applicable jurisdiction arising from a claim that the EskimiPlatform infringes or misappropriates any third party intellectual propertyright. Company shall give Eskimi sole control over the defense and/orsettlement of any such claim, except that Eskimi will not agree to any settlement or compromise that would requireany of the Company Indemnified Parties to make anypayments or bear any obligations unless Eskimi obtains Company’s prior writtenapproval. Company shall give Eskimi reasonable assistance in such defense at Eskimiexpense.
9.1. This Agreement shallhave the initialterm of twelve (12) months,beginning on the EffectiveDate and auto renew for successive 12 month increments on each anniversary ofthe Effective Date (the “Term”), unless either Party provides writtennotice of termination at least thirty (30) days prior to such renewal.
9.2. Either Party may terminate this Agreement for any or no reason upon thirty (30) days prior written notice; provided that the Service resultingfrom any WinningBids in relation to theService shall continue for the duration of the time period for which theapplicable Advertising is displayed on the Ad Inventory.
9.3. Notwithstanding the foregoing, either Party mayterminate this Agreement, including any ongoing Service for then-currentWinning Bids, if the other Party materially breaches this Agreement, providedthat the breaching Party is given thirty (30) days notice in which to cure thebreach.
9.4. Any and all provisions or obligations containedin this Agreement which by their nature or effect are required or intended tobe observed or performed after termination of this Agreement will survive theexpiration or termination of this Agreement and remain binding upon and for thebenefit of the Parties, their successors and permitted assigns.
2.1. Independent Contractors. The Partiesto this Agreement are independent parties and nothing herein shall be construedas creating an employment relationship between the Parties. Neither Party is anagent or representative of the other Party and neither Party shall have anyright, power or authority to enter into any agreement for or on behalf of, orincur any obligation or liability, or to otherwise bind, the other Party. TheAgreement shall not be interpreted or construed to create an association,agency, joint venture or partnership between the Parties or to impose anyliability attributable to such a relationship upon either Party.
2.2. Entire Agreement. The Agreement,including these General Terms and the Main Terms, exhibits or schedules executedby the Parties, constitutes the entire understanding and agreement with respectto its subject matter, and supersedes any andall prior or contemporaneous representations, understandings andagreements, whether oral or written, between the Parties relating to thesubject matter of this Agreement, all of which are merged in this Agreement.
2.3. Severability of Provisions. In theevent that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicialdecree or decision, the remainder of this Agreement shall remain valid andenforceable according to its terms.
2.4. Assignment. This Agreement shallinure to the benefit of and be binding upon the Parties hereto, theirsuccessors and permitted assigns. None of the rights, duties and obligations ofany Party hereunder may be assigned without the prior written consent of theother Party; provided, however, that each Party may assign this Agreement tothe surviving entity in connection with a merger or consolidation in which itparticipates, or to a purchaser of all, or substantially all, of its assetsrelated to this Agreement so long as such surviving entity or purchaser shallexpressly assume, in writing, the performance of all of the applicable terms ofthis Agreement.
2.5. Governing Law; This Agreement shall begoverned by the laws of Singapore without giving effect to applicable conflictof laws provisions.
2.6. Dispute resolution. Anydispute arising out of or in connection with this Agreement, including anyquestion regarding its existence, validity or termination, shall be referred toand finally resolved by arbitration administered by the Singapore InternationalArbitration Centre (“SIAC”) in accordance with the Arbitration Rules of theSingapore International Arbitration Centre ("SIAC Rules") for thetime being in force, which rules are deemed to be incorporated by reference inthis clause. Disputes arising due to the breachof payment obligations by the Company may be be handed for settlement, by thechoice of Eskimi, either to the courts of general competence of the Company’s jurisdiction, or to the courtsof jurisdiction of Eskimi, ensuring the most efficient litigation procedure forthe Parties.
2.7. Attorneys’Fees. In the event any litigation or other proceeding is brought by eitherParty in connection with this Agreement, the prevailing Party in suchlitigation or other proceeding shall be entitled to recover from the other Partyall reasonable costs, attorneys’ fees and other expenses incurred by suchprevailing Party in such litigation.
2.8. Waiver. No waiver of anyprovision of this Agreement, or any rights or obligations of either Party underthis Agreement, shall be effective, except pursuant to a written instrumentsigned by the Party or Parties waiving compliance, and any such waiver shall beeffective only in the specific instance and for the specific purpose stated insuch writing. The failure of either Party to require the performance of anyterm of this Agreement or the waiver of either Party of any breach under thisAgreement shall not operate or be construed as a waiver of any other provisionhereof, nor shall it be construed asa waiver of any subsequent breach by the other Party hereto.
2.9. Amendment. These General terms may beunilaterally amended by Eskimi from time to time by informing the Company. TheCompany agrees to comply with the latest version of the General Terms.
2.10. Force Majeure. Either Party shall be excusedfrom any delay or failure in performance hereunder (excluding paymentobligations) caused by reason of any occurrence or contingency beyond itsreasonable control, including but not limited to, acts of God, earthquake,labor disputes and strikes, riots, war, common carrier interruptions, breakdownin facilities and government requirements. Notwithstanding the foregoing, achange in economic conditions or technology shall not be deemed a force majeureevent. The obligations and rights of the Party so excused shall be extended ona day-to-day basis for the period of time equal to that of the underlyingcause of the delay.
2.11. Execution in Counterparts and by E-Mail orFacsimile. This Agreement may be executed in counterparts, each of which shallbe deemed an original, but all of which taken together shall constitute but oneand the same instrument. This Agreement may be executed and delivered by e- mailed image or by facsimile and theParties agree that such facsimile execution and delivery shall have the sameforce and effect as delivery of an original document with original signatures,and that each Party may use suche-mailed or facsimile signatures as evidence of the execution and delivery ofthis Agreement by all Parties to the same extent that an original signaturecould be used.
2.12. ACCESS TO SOURCE CODE. Partial or full sourcecode shall not become available to the Company or its employees. Company agreesnot to use any of the available source code in other interests, other projectsand agrees not to share it in full or in part with any other third parties.Company should not make any changes to the source code. HITTAPS reserves theright to refuse the service in whole or in part and refuse any refund in caseswhen such unauthorized modification is detected. In the case of the breach ofthe proprietary right the Company is obligated to compensate the amount of theloss beard by HITTAPS as estimated by the HITTAPS at its sole discretion.