Last updated 2023-03-29
SOURCE KNOWLEDGE TERMS OF SERVICE
This Terms of Service (“ Terms of Service”) describes the terms and conditions under which you (“Client,” “you,” or “your”) may access and use the Services provided by Sokno Media, Inc., d.b.a “SourceKnowledge”, a Canadian corporation with offices at 1001 de Maisonneuve Ouest, Suite 1510; Montreal, Quebec; Canada; H3A 3C8 (“SourceKnowledge”) and govern all Insertion Orders (IO’s) entered into by SourceKnowledge.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH SOURCEKNOWLEDGE THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT).
WHEREAS, SourceKnowledge desires to provide, and Client desires to utilize, SourceKnowledge’s Services for either the fulfillment of placement of Advertising on third party Sites or for the sale of Ad Inventory to Buyers.
“Ad” or “Advertising” or “Advertising Content” means a commercial notice, announcement, message made or any other type of advertising material or content, in any format and however delivered, together with related code and other material used for the placement and display of such material or content on Media in a public medium to customers or prospective customers to promote a person, entity, brand, product, service, or event.
“Ad Inventory” means any media space and made available for purchase by Sellers through the Services for the display of Advertising.
“Agreement” means, collectively: (i) these Terms of Service, (ii) any Insertion Order entered into by Client and SourceKnowledge by any legally binding method of forming a contract together with any exhibits, schedules or appendices attached thereto or incorporated by reference, and (i ii) any amendments to any of the foregoing agreed upon in writing or otherwise issued by SourceKnowledge pursuant to Section 12.8.
“Applicable Data Protection Laws” means any and all federal, national, state, or other privacy and data protection laws that may be applicable to either party as may be amended or superseded from time to time, together with the self-regulatory industry codes and principles promulgated by the Digital Advertising Alliance, jurisprudence of the Federal Trade Commission, the California Consumer Privacy Act, and “EU Data Protection Law” means (aa) prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC); (bb) on and after 25 May 2018, the EU General Data Protection Regulation(Regulation 2016/679); (cc) the EU e-Privacy Directive (Directive 2002/58/EC); and (dd) any national data protection laws made under or pursuant to (aa), (bb), or (cc).
“Buyer” means any party engaged in purchasing or facilitating the purchase of Ad Inventory through the Services including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, or provider of goods or services advertised and representative thereof.
“Campaign Data” means performance and measurement data made available by SourceKnowledge through the Platform that relates to Client’s Ad campaigns launched through the Services.
“Client Content” means all logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to SourceKnowledge for use with the Services.
“Client” means the entity or individual that is a party to the Agreement with SourceKnowledge. For clarity, “Client” may be a Buyer, Seller, an entity accessing or using the Services in any other capacity, or an entity that assumes multiple such roles, as the Client requires.
“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by SourceKnowledge to Client.
“Feedback” means information regarding the features and performance of the Services , including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Services.
“Insertion Order” means an order form, or schedule, or other document (including an online registration page, online order form) entered into or accepted by Client and SourceKnowledge that sets forth one or more Service(s) being provided by SourceKnowledge to Client and specific terms applicable to each such Service.
“Media” means websites, applications, mobile websites, mobile applications, television, print, billboards, and other media through or on which Advertising may be delivered.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the registration or grant of any such rights.
“PII” or “Personal Data” means any information that would allow the identification of a particular natural person, or other information that is classified as “personally identifiable information” (or similar categorization), as determined in accordance with laws or regulations in any applicable jurisdiction.
“Platform” means the SourceKnowledge website, dashboard, and tools that Client has access to through the Services to create, launch, monitor, pause, and stop an Ad campaign.
“Platform Policies” means, collectively: (i) any specifications, technical documentation, or integration requirements made accessible to Client by SourceKnowledge in connection with the Technology; and (ii) requirements, prohibitions, and guidelines applicable to Client’s integration with or use of the Services imposed by SourceKnowledge or a third party, as updated from time to time; in each case which may deal with or respond to, among other things, changes in laws or regulations, industry or technology developments, emerging risks, or evolution of the Services or Project Materials, and which are made available to Client via the Services of the applicable service or otherwise made known to Client.
“Prohibited Content” means any content or material that: (i) violates any applicable law, rule or regulation; (ii) promotes violence, discrimination, hatred, peer-to-peer applications, networks or sites, copyright protection circumvention, or unlawful subject matter or activities; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; or (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit.
“Project Materials” means the Service(s) and the Technology.
“Seller” means any party engaged in the sale or facilitation of sale of Ad Inventory through the SourceKnowledge Services.
“Services” means each SourceKnowledge product, platform or service provided or made accessible to Client in accordance with an Insertion Order .
“Standard Contractual Clauses” means the applicable module(s) of the European Commission’s standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as set out in the Annex to Commission Implementing Decision (EU) 2021/914.
“Technology” means any proprietary or confidential technology or materials of SourceKnowledge: (i) made accessible to Client or (ii) made accessible to third parties and/or Affiliates by Client or at Client’s request in accordance with and as permitted by the terms of the Agreement, including any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”), used to effect or facilitate a provided Service.
“User” means any natural person that is a visitor to, or other end-user of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone, or browser) used by such natural person or other end- user to visit, access, or use any such website, portal, device, application, or other online service.
“User Data” means information that is specific to or attributable to a User, including location, or device identifier, that is received by Client through its participation in or use of the Services.
Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.
1.1 SourceKnowledge License Grant. Subject to Client’s payment and the terms set forth in this Agreement, SourceKnowledge grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Client during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Client’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the SourceKnowledge API).
1.2 Client License Grant. During the Term, Client grants SourceKnowledge a worldwide, royalty-free, non-transferable (except as necessary for SourceKnowledge to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, and publicly display, the Client Content in Ads on the Network or otherwise in connection with the Services and in promotional materials related to the Services.
1.3 Requirements. Client will comply with all requirements for use of the Services communicated by SourceKnowledge to Client via Documentation, and acknowledges that absent such compliance, SourceKnowledge may be unable to provide the Services to Client. SourceKnowledge will have no liability to Client for providing the Services, if failure is a result of Client’s inability to comply with this section.
1.4 Modifications. SourceKnowledge will host the Services and may update the Services from time to time in accordance with this Agreement. If SourceKnowledge provides Services updates to Client that require action on Client’s part, Client will integrate the updates within 30 days. SourceKnowledge may make changes to the Services (including discontinuation of all or part of the Services) at any time. SourceKnowledge will provide notice to Client of material changes in accordance with Section 12.8 below. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to SourceKnowledge.
1.5 Display of Ads. Client can request to work with SourceKnowledge (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to SourceKnowledge. Client acknowledges that SourceKnowledge cannot control where and how often Ads will be displayed within the Network. For instance, Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client. SourceKnowledge will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Client notifies SourceKnowledge in writing that Ads are being displayed in this manner, SourceKnowledge will use commercially reasonable efforts to prevent Ads from continuing to display in this manner. Client Content must comply with Documentation requirements or SourceKnowledge may be unable to provide the Services with respect to such Client Content.
1.6 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the SourceKnowledge Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Client agrees that SourceKnowledge may accept certain third party terms and conditions as agent on Client’s behalf where necessary for SourceKnowledge to perform Services requested by Client.
ACCOUNT AND CAMPAIGN SETUP
2.1 Account Set Up. Setting up an Account with SourceKnowledge is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify SourceKnowledge of any breach of security, misuse, or unauthorized use of its Account or credentials.
2.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set goal and other details, and to review performance. Charges incurred because of changes made using Client’s account will be included in Client’s regular bill or invoice. In addition to SourceKnowledge’s optimization services and features, SourceKnowledge may offer Managed Account Services to Client. SourceKnowledge will use commercially reasonable efforts to comply with the budget specified by Client.
2.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by SourceKnowledge, spend or conversions will be based either on a mutually agreed to third party tracking software or SourceKnowledge’s own measurements and tracking through its servers using the number of acquisition targets, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
2.4 Auto-Payment Accounts. For auto payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize SourceKnowledge to charge recurring amounts due when your billing threshold is met using the valid payment details provided by You. SourceKnowledge reserves the right to discontinue the auto payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred. If your account has incurred spend, but has not met it’s threshold billing requirement, SourceKnowledge will charge your card equal to the amount owing after 30 days.
2.5 Insertion Order Accounts. SourceKnowledge may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. SourceKnowledge reserves the right to request a prepayment from Client at any time. SourceKnowledge will send Client a monthly invoice via email reflecting the amount owed by Client to SourceKnowledge. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. SourceKnowledge may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by applicable law, whichever is less. Client will reimburse SourceKnowledge for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.
2.6 General Payment Terms. You agree that you have all necessary right, power, and authority to authorize each such payment. For certain payment methods, the issuer of your payment method may charge you a foreign transaction fee or other charges. Check with your payment method service provider for details. If you develop credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or SourceKnowledge otherwise designates you as a credit risk, SourceKnowledge reserves the right to require prepayment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that SourceKnowledge will have no obligation to provide the Services if sufficient funds are not available at the time your payment is submitted, and we reserve the right to suspend your campaigns due to failed payments or insufficient balance.
2.7 Currency and Taxes. All payments to SourceKnowledge will be made in United States Dollars or the Canadian Dollar, unless otherwise agreed to in an IO or offered through the Platform. Payments are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon SourceKnowledge’s net income.
OBLIGATIONS OF THE PARTIES
3.1 SourceKnowledge Obligations.
SourceKnowledge will maintain throughout the Term all software codes and tags necessary for Client to serve the Advertising in accordance with the Services. SourceKnowledge is the sole and exclusive owner of all right, title and interest in and to the Technology. Client shall not use the Technology except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. SourceKnowledge shall make the Services accessible to Client pursuant to the Agreement and, unless otherwise stated in the applicable Insertion Order Form, provide Client with access to applicable Project Materials. Client acknowledges that SourceKnowledge may utilize one or more of its Affiliates, as appropriate, to fulfill its obligations under this Agreement.
3.2 Client Obligations.
(a) Registration Obligations. Client shall: (a) provide true, accurate, current, and complete information as prompted by the Services or otherwise requested by SourceKnowledge in establishing an account for accessing the Service (such information, the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. In order to provide the Service, SourceKnowledge may transfer certain Registration Data, or may process certain Registration Data, in the United States, and Canada, or other locations, and Client consents to any such transfer or processing.
(b) Account, Password and Security. Client must establish an account for accessing the Services including a username and password to access such account (“Credentials”). Client is responsible for all activities that occur under its Credentials and account. Client agrees to promptly notify SourceKnowledge of any unauthorized use of its Credentials or access to the Services or any other suspected breach of security.
(c) Platform Policies. Client shall conform to the Platform Policies.
(d) Prohibited Activities. Client shall not do any of the following (each a “Prohibited Activity”): (i) provide or deliver or perpetuate through the Services any Malicious Code, via Media or Ads purchased or sold or otherwise; (ii) generate impressions, clicks, displays, views, conversions or any other actions that are tracked and may serve as a basis for payment or analysis (collectively “Reported Actions”) with respect to any Ad or Media purchased, sold, delivered, or served via the Services through any Invalid Means, or otherwise deploy or facilitate Invalid Means in its use of the Services. In addition, if Client uses a third party’s technology or materials in connection with Client’s activities under the Agreement, Client will not violate any agreements, conditions or terms of usage imposed by such third party on Client related to the use of such third party’s technology or materials.
3.3 Mutual Obligations.
(a) Each party shall (i) comply with all laws, rules and regulations applicable to it in performing its respective obligations and exercising its rights under the Agreement, including those Applicable Data Protection Laws that are applicable to such party, and (ii) use commercially reasonable efforts and cooperate with the other to detect, limit, prevent, and prohibit Prohibited Activities by third parties.
(c) Each party must have and maintain its own process to manage data subject access requests, including any opt-outs for the sale of Personal Data and any requests for deletion of Personal Data. In the event either party receives a data subject access request, it will respond as required by Applicable Data Protection Laws, but will notify the other party if and to the extent it is reasonably determined that that the data subject is a customer of the other party.
4.0 United States-Directed Kids’ Sites.
In the event Client is the Seller, and the Client Media made available for Ad Inventory either (1) is directed to children under the age of 13 ; or (2) collects information from U sers known by the Client to be under the age of 13 (“Kids’ Sites”) must be identified as such by the Seller making such Media available as Ad Inventory through the Services, as directed in the Platform Policies or otherwise to SourceKnowledge in writing (including email). Client may not, except to the extent permitted by applicable law, (i) create profiles of Users of Kids’ Sites, (ii) purchase, sell, place or facilitate the placement of behaviorally targeted Ads on Kids’ Sites, or (iii) collect PII (as defined by COPPA) about U sers of Kids’ Sites. Without limitation the foregoing, Client’s use of the Services will be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”). SourceKnowledge undertakes no obligation to monitor COPPA compliance by any Client whether Buyers or Sellers. Nothing in this Section shall be construed as limiting Client’s obligation to comply with any other applicable laws, rules or regulations related to minors.
5.1 Right to Access and Restrictions.
Client may access and use the Project Materials solely for the purposes of use and performance of obligations under the Agreement, and solely in accordance with applicable Platform Policies. Client shall not: (a) resell, license, lease, time-share or otherwise transfer or distribute any of the Project Materials; (b) reverse engineer, decompile or dissemble the Project Materials (except to the extent expressly permitted by applicable law); (c) modify, copy or create derivative works of the Project Materials, except that Client may modify and create derivative works of a SourceKnowledge SDK to the extent necessary to achieve the objectives contemplated by the applicable Order Form (e.g., serving an Ad in a mobile application); (d) use the Project Materials to build a competitive product or service. Client may not transfer or provide access to any Project Materials to any third party except that Client may transfer, provide access or request SourceKnowledge to provide access, to the Project Materials to Client’s authorized representatives to facilitate Client’s use of the Service, provided that (i) Client is responsible for any acts or omissions of such authorized representatives, and (ii) Client shall cause such authorized representatives to handle such Project Materials in accordance with same requirements and restrictions applicable to Client. SourceKnowledge reserves all rights not expressly granted hereunder.
To the extent Client chooses to buy or sell Ad Inventory through the Service on a non-blind basis, Client hereby grants to SourceKnowledge a non-exclusive, non-transferable (other than to a successor in interest in connection with a merger, reorganization or sale of all or substantially all assets or equity) right and license to use, reproduce and display Client’s name, logo, service marks, trademarks and related brand features (“Marks”) on or within the user interface for the Service, including as made available to third parties (including but not limited to Buyers and/or their representatives). SourceKnowledge’s use of Client’s Marks will be in compliance with any reasonable written usage guidelines provided to SourceKnowledge by Client.
As between the parties, SourceKnowledge shall own and retain all right, title and interest in and to the Project Materials and SourceKnowledge’s Confidential Information, together with all Intellectual Property Rights therein and thereto. As between the parties, Client shall own and retain all right, title and interest in and to: (i) Client’s Media (exclusive of any Ads placed thereon) to the extent Client is acting as a Seller, (ii) the Ads, to the extent Client is acting as a Buyer, (iii) Client’s Marks, (iv) Client’s Confidential Information, and (v) Client’s Intellectual Property Rights therein and thereto. Client may, in its sole discretion, provide SourceKnowledge with suggestions or other feedback regarding any Project Materials, which SourceKnowledge may freely incorporate into the Project Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to Client.
6.0 CONFIDENTIAL INFORMATION
(a) As used herein, “Confidential Information” means all material or information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Confidential Information includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets and business processes. The terms and conditions (including pricing) of each Insertion Order are Confidential Information of each party. SourceKnowledge Materials are Confidential Information of SourceKnowledge. However, notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.
(c ) Receiving Party shall not use Confidential Information of Disclosing Party for any purpose other than to perform Receiving Party’s obligations or exercise its rights under the Agreement. In addition, Receiving Party shall not disclose Confidential Information of Disclosing Party to any third party, except with Disclosing Party’s prior written consent or as otherwise required by law or legal process, and except that Receiving Party may disclose the Confidential Information of the Disclosing Party to Receiving Party’s employees, consultants or other representatives who have a bona fide need to know such Confidential Information to support the Receiving Party’s exercise of its rights or performance of its obligations under the Agreement and who are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those set forth herein, provided that Receiving Party shall be responsible and liable for failure by any party to which it discloses Disclosing Party’s Confidential Information to treat that information in accordance with Receiving Party’s obligations. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
(d ) If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 6.0, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
(e ) Upon termination or expiration of the Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
7.0 TERM AND TERMINATION
The Agreement will continue in effect until terminated as permitted hereunder. Each Account or Insertion Order Form has the term specified therein. Termination of any individual Account shall not affect any other Account in effect between the parties at the time of such termination. Either party may terminate this Agreement for any or no reason upon thirty (30) days’ written notice to the other party if no Insertion Order Forms are in effect between the parties at such time.
Client or SourceKnowledge may terminate this Agreement (a) for convenience on seven (7) days’ written notice at any time or (b) immediately in the event that the other party fails to remedy a material breach of this Agreement within forty-eight (48) hours of its receipt of written notice thereof. In addition, SourceKnowledge may terminate this Agreement immediately, without notice, in the event that Client fails to comply with SourceKnowledge’s Advertising Policies. Client may terminate any Campaign on twenty-four (24) hours’ written notice. SourceKnowledge may terminate or suspend Client’s access to or use of the Service or terminate this Agreement at any time if: (a) in the sole discretion of SourceKnowledge, such action is necessary to prevent errors or harm to any system or network, or to limit SourceKnowledge’s or its affiliates’ liability; or (b) Client attempts to access or use the Service in an unauthorized manner, including, without limitation, any attempt to gain access to the accounts of other SourceKnowledge customers or use the Service in a way that infringes upon SourceKnowledge’s, its affiliates’ or a third party’s Intellectual Property Rights, or the use of automated systems or software to extract data from the Sites for commercial purposes (also known as screen scraping), unless where Client has a written agreement with SourceKnowledge particularly to this extent. In the event that Client has made a Campaign Prepayment and SourceKnowledge discovers that Client has violated SourceKnowledge’s Platform Policies by using non-standard URL redirects to surreptitiously redirect Visitors to landing page content that (1) does not match the landing page content originally submitted for distribution through the Service or (2) is not otherwise in compliance with SourceKnowledge’s Platform Policies as a result of “cloaking” or other techniques that hide the true destination landing page that a User is directed to from Client’s URLs, SourceKnowledge shall be entitled to either charge the remaining amount of Client’s spend to the credit card maintained on file or retain any campaign Prepayments made, in which case, SourceKnowledge will not refund any such funds. For clarity, SourceKnowledge shall be entitled to retain the Prepayment and will not refund any such funds in the event of such breach by Client.
8.0 REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 Mutual Representations and Warranties
Client and SourceKnowledge each represents and warrants to the other that: (a) it has the full corporate right, power and authority to enter into the Agreement and to exercise its rights and perform its obligations; and, (b) its execution and delivery of the Agreement, and the performance of its obligations and duties in connection therewith, do not and will not violate any agreement to which it is bound.
Except for the express representations and warranties stated herein, neither party makes, and each party expressly disclaims, all representations and warranties, express, implied, statutory, or otherwise, with respect to the subject matter of the agreement, including without limitation implied warranties of access, merchantability, noninfringement, fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Without limiting the generality of the above, SourceKnowledge makes no representation or warranty as to any benefit or revenues that Client (or Client’s own customers or users) will obtain from its use of the service, and SourceKnowledge does not represent or warrant that the service will be always available or error-free. Furthermore, SourceKnowledge provides no warranty, representation, or guarantee that Client’s use of the Services or access to the Platform or any User Data made available via the same complies with any applicable data privacy or security laws. Client is solely responsible for their own legal compliance and ensuring that its use of the Services and Platform is sufficient for Client to meet its legal obligations.
9.0 DATA PROTECTION AND PRIVACY:
9.2 Application of Data Protection Law: The parties acknowledge that some or all of the Campaign Data may qualify as, or include, Personal Data and that Applicable Data Protection Laws may apply to the processing of the Campaign Data. Where this is the case, each party shall comply with such Applicable Data Protection Laws with respect to its processing of the Campaign Data.
9.3 Relationship of the Parties: In no event shall the parties process the Campaign Data as joint Controllers. Each party shall be individually responsible for its own compliance with Applicable Data Protection Laws, including for providing any transparency and obtaining any consents for the processing of Campaign Data that may be required under Applicable Data Protection Laws.
9.4 Purpose Limitation: Each party agrees that it shall process the Campaign Data that it collects only for the purposes permitted by this Agreement and Applicable Data Protection Law.
9.5 Security: Each party shall implement and maintain appropriate technical and organizational measures to protect the Campaign Data from (i) accidental or unlawful destruction and (ii) loss, alteration, unauthorized disclosure of, or access to the Campaign Data that is in such party’s possession or custody throughout the Term.
9.6 Retention. Client acknowledges that SourceKnowledge is not the system of record for Campaign Data such that SourceKnowledge shall have the right to delete Client Campaign Data in accordance with SourceKnowledges’ data retention policies.
9.7 Audits: SourceKnowledge agrees to reasonably assist Client in performing any audits if and to the extent such audit is required by Applicable Data Protection Laws no more than once per calendar year unless otherwise dictated by Applicable Data Protection Law. Client will give SourceKnowledge at least thirty (30) days’ advance written notice prior to conducting any such audit and to the extent feasible such audit will be scheduled to occur at a time mutually agreed by the parties. Client will conduct any such audit at its own cost during regular business hours and without unreasonable disruption to SourceKnowledge’s operations. In any event, any such audit will not require SourceKnowledge to provide any Client with access to the confidential information of SourceKnowledge’s other customers or information of SourceKnowledge not applicable to the performance of the Services for Client.
9.8 Subcontractors: Client authorizes SourceKnowledge to engage subcontractors in order to perform the Services and provide the Platform, which may include the processing of User Data and Campaign Data, which may include Personal Data, provided that SourceKnowledge: (a) complies with the Applicable Data Protection Laws; (b) ensures any such subcontractor is bound by contractual terms at least as protective and stringent as those of this Agreement; and (c) will remain responsible for the performance of any Services by any subcontractor. SourceKnowledge will disclose such subcontractors to Client upon request and if Client has any objection to any such subcontractor the parties will work in good faith to resolve such issue. Should such resolution prove impossible or impracticable, Client may terminate this Agreement, which is Client’s sole and exclusive remedy and SourceKnowledge’s sole and exclusive obligation.
9.9 International Transfers: Where EU Data Protection Law applies, neither party shall process its Campaign Data (nor permit its Campaign Data to be processed) in a territory outside of the European Economic Area (“EEA”) unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law. Such measures may include (without limitation) transferring its Campaign Data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with EU Data Protection Law, or to a recipient that has executed S tandard C ontractual C lauses adopted or approved by the European Commission.
10.1 Client Obligations
Client shall indemnify, defend and hold harmless SourceKnowledge, its permitted successors and assigns, and their respective agents, officers, directors and employees (collectively, “SourceKnowledge Indemnified Parties”) from and against any claims, suits, legal, regulatory or investigatory proceedings (“Claims”) brought against any SourceKnowledge Indemnified Party by a third party and any all judgments, losses, damages, settlements, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and notice costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with: (a) Client’s breach of the Agreement or Client’s obligations to any third party; (b) a claim that Client’s Marks, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party; (c) Client’s provision or delivery of any Prohibited Content through the Service or the inclusion of any Prohibited Content in any Media or Ads purchased, placed, or sold by Client in connection with this Agreement; (d) any actual or alleged violation of a third party’s privacy right or any actual or alleged violation of Applicable Data Protection Laws or (e ) the breach or inaccuracy of any representation or warranty of Client in the Agreement. The acts described in items (a)–( e) above referred to herein as “Client Indemnifiable Acts.”
Except for that which Client indemnifies SourceKnowledge, SourceKnowledge shall indemnify, defend, save, and hold harmless Client and its parent, subsidiaries, and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against any and all third party claims, damages, fines, penalties, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs) (collectively, the “Losses”) resulting from, arising out of, or related to: (i) SourceKnowledge’s breach or alleged breach of any of SourceKnowledge’s representations or warranties set forth in Paragraph 5 or (ii) a claim that the Platform violates a third party trademark, trade secret, copyright, or privacy right, except to the extent that such claim arises out of the combination of the Platform with Client Content or the content on Client’s landing page.
Client shall indemnify, defend, save, and hold harmless SourceKnowledge, the owners of the SourceKnowledge Publisher Websites, and its and their parents, subsidiaries, and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against all Losses resulting from, arising out of, or related to (i) Client’s breach or alleged breach of any of Client’s representations, warranties, or agreements; (ii) a claim that Client Content or content on Client’s landing page infringes upon, violates, or misappropriates any third party Intellectual Property Rights, slanders, defames, or libels any person or entity, or does not comply with any applicable law or regulation; (iii) Client’s failure to secure all rights, title, and interest necessary to display the Client Content via the Platform; and (iv) an allegation that Client’s Content, content on Client’s landing page, or products or goods being advertised in the Client’s Content violate any applicable law or regulation.
The parties agree that in seeking any indemnification hereunder, the party seeking indemnification (the “Claimant”) shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of the claim triggering the indemnification being sought; (ii) grant the Indemnifying Party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information, and authority reasonably required for the defense of the claim. The Claimant will provide the Indemnifying Party with prompt notice of any claim (provided that the failure to promptly notify shall only relieve Indemnifying Party of its obligation to the extent it can demonstrate material prejudice from such failure) and, at the Indemnifying Party’s expense, provide assistance reasonably necessary to defend such claim. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) without the prior written consent of the Claimant, which consent shall not be unreasonably withheld or delayed. In addition, any legal counsel sought to be appointed to defend the indemnified claim(s) shall be subject to the prior written consent of the Claimant, such consent not to be unreasonably withheld or delayed.
11.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF THE AGREEMENT EXCEED $250,000. THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO: (A) A BREACH OF CONFIDENTIALITY; (B) A CLAIM FOR INDEMNIFICATION (C) THE GROSS NEGLIGENCE; WILLFUL OR INTENTIONAL MISCONDUCT, OR DISHONEST, FRAUDULENT, CRIMINAL OR MALICIOUS CONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES; OR (D) AMOUNTS PAYABLE TO SOURCEKNOWLEDGE UNDER AN INSERTION ORDER FORM.
Client may not assign the Agreement or any Insertion Order Form, including without limitation, by operation of law or merger, without SourceKnowledge’s prior written approval, and any attempt to assign the Agreement or any Insertion Order Form without such prior written approval is void.
12.2 Governing Law; Venue
The Agreement will be governed and interpreted in accordance with the laws of the State of New York, United States, without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be exclusive in the state and federal courts with jurisdiction in New York City, New York. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
12.3 Non-Exclusive Relationship; No Minimums
Except as otherwise expressly agreed in this Agreement, this Agreement is non-exclusive and either party may engage in similar or other relationships, agreements or arrangements with any other party. Except as agreed in an Insertion Order Form, neither party promises any level of business or outcomes to the other.
12.4 Independent Relationship of the Parties
The relationship between Client and SourceKnowledge (and its personnel or agents) in connection with the Agreement is at all times that of an independent contractor and neither party is an employee, partner, agent, trustee, or joint venturer of, for, or with the other. Neither party shall owe any fiduciary or, except to the extent otherwise provided herein or under applicable law, other duties to the other.
Headings and captions are for convenience only and do not affect the meaning or interpretation of the Agreement. Ambiguities, inconsistencies, or conflicts in the Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Agreement is entered into and common practice in the industry. The term “including” or “includes” means “including/includes without limitation.” This Agreement shall not be construed against any party by reason of its drafting, preparation or means of acceptance.
All notices under the Agreement must be made in writing. Notices to Client may be made in the UI of the Service, or by e-mail to the address listed in your Account contact information, express courier, or certified mail. Notices to SourceKnowledge may be made by e-mail to email@example.com, express courier, or certified mail. Notice will be effective on receipt.
12.7 Advice of Counsel
Each party acknowledges that such party has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and provisions of this agreement.
SourceKnowledge will provide Client with written notice via email or the applicable Service user interface of any material changes to the Agreement or any Platform Policy applicable to Client (“Modifications”). If Client determines in its reasonable discretion that a Modification will have a material, adverse effect on Client, then for a period of ten (10) business days after the date of notice by SourceKnowledge (the “Termination Window”), Client may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to SourceKnowledge. By continuing to access or use the Services or any Technology after such Termination Window, Client agrees to be bound by such Modification.
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings and communications, oral or written, between the parties related to such subject matter. In case of any dispute between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’ and other fees and costs from the non-prevailing party, provided that the court or arbitrator may eliminate or reduce such recovery on grounds that it is unreasonable or disproportionate to the harm suffered or recovery achieved. The Agreement shall prevail over any additional or conflicting terms that appear in any purchase order, invoice or other document furnished by Client to SourceKnowledge. In the event of any conflict or inconsistency between provisions or components of the Agreement, each as may be amended, the Insertion Order Form(s) shall take precedence over these SourceK nowledge Conditions. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. Except for payment obligations, no party is liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control. Any provision of the Agreement that is held by a court of competent jurisdiction to be unenforceable shall be modified to the minimum extent necessary to make such provision enforceable and to best preserve the parties’ intent, provided that if such modification would materially alter the effect of the provision then the provision shall be considered void, and the remaining provisions of the Agreement shall be enforceable in accordance with their terms. This Agreement may be signed in counterparts, each of which shall be deemed an original and together will constitute the Agreement. Pursuant to any applicable laws, rules, or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
12.10 Force Majeure:
Neither Client nor SourceKnowledge will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. If Client’s ability to transfer funds to third parties has been materially adversely affected by an event beyond Client’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Client will make every reasonable effort to make payments on a timely basis to SourceKnowledge, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.