These terms and conditions apply to Media Company's provision of the Services. These terms and conditions are incorporated into each Accepted Order and, together with the Accepted Order, constitute a binding contract between Client and Media Company ("Agreement").
1. Definitions. In these terms and conditions, the following terms shall have the following definitions:
A. "Accepted Order" means an Order signed by Client and Media Company.
B. "Agreement" has the meaning set forth in the preamble.
C. "Client" means the customer or client listed on an Accepted Order.
D. "Client Data" means data, media, content, information, or other materials that: (i) Client provides to Media Company in order for Media Company to perform the Services; or (ii) Media Company collects using the Collection Devices while performing the Services under this Agreement.
E. "Collection Devices" means data harvesting tools and methods used by Media Company which may include a pixel (or other script or code) installed on Client's website, an integrated mobile software development kit, an application programming interface, or other mutually agreed upon means.
F. "Deliverables" means the deliverables specified in an Order.
G. "Effective Date" means the date an Accepted Order is signed by Client and Media Company.
H. "Media Company" means Surfside Solutions Inc., a Delaware corporation.
I. "Order" means a written order, in the form made available by Media Company from time to time, from Client to Media Company for the provision of the Services.
J. "Party" means Client or Media Company.
K. "Parties" means Client and Media Company.
L. "Personally Identifiable Information" means any information used, or intended to be used to identify a particular individual, including, but not limited to, name, address, telephone number, email address, financial account number, and government-issued identifier.
M. "Services" means the data analytic services to be provided by Media Company pursuant to an Accepted Order. The Services generally consist of Media Company collecting Client Data and then interfacing, combining, or otherwise enhancing the Client Data with or using the Standard Data to create Deliverables.
N. "Standard Data" means data, media, content, information, or other materials that Media Company maintains as part of its service offerings and that Media Company otherwise collects outside of its engagement with Client.
2. Fees and Expenses/Payment Terms.
A. Client shall pay Media Company the fees set forth on the applicable Accepted Order. Client shall pay all properly invoiced amounts due to Media Company within 30 days after Client's receipt of an invoice from Media Company
B. Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 12% per year or the highest rate permissible under applicable law. Client shall also reimburse Media Company for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Media Company does not waive by the exercise of any rights hereunder), Media Company shall be entitled to suspend the provision of any Services if the Client fails to pay any undisputed fees when due hereunder and such failure continues for 5 days following written notice thereof.
C. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Media Company's income, revenues, gross receipts, personnel, or real or personal property or other assets.
3. Data Collection and Ownership Rights.
A. Client maintains ownership of all Client Data. Client hereby grants Media Company a non-exclusive, worldwide, perpetual, royalty free, fully paid up, license to use Client Data: (i) to perform the Services and create the Deliverables; and (ii) for Client's internal business purposes. Client further authorizes Media Company to access Client's website(s) and use Collection Devices to perform the Services. Client shall not reverse engineer, decompile, disassemble, or interfere with the Collection Devices.
B. Media Company maintains ownership of all Standard Data and Deliverables. Effective upon payment of the applicable fees to Media Company, Media Company grants to Client a non-sublicensable, non-transferable license to use the Deliverables for Client's internal marketing and advertising purposes. Client shall not share the Deliverables with any third party or use the Deliverables except as specified herein. All Collection Devices are the exclusive property of Media Company.
4. Confidential Information. All non-public, confidential or proprietary information of a Party ("Disclosing Party"), including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, advertising, data, promotion and marketing (collectively, "Confidential Information"), disclosed or otherwise made available by such Disclosing Party to the other party ("Recipient") in connection with the provision of the Services and this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is confidential, and shall not be disclosed by Recipient without the prior written consent of Discloser. The confidentiality provisions set forth herein shall survive termination or expiration of this Agreement for a period of 5 years. Confidential Information does not include information that the Recipient can demonstrate by documentary evidence: (i) is or becomes generally available to the public other than through Recipient's breach of this Agreement; (ii) is communicated to Recipient by a third party that had no confidentiality obligations concerning such information; (iii) was known to Recipient at the time of disclosure; or (iv) was independently developed by Recipient without reference to Discloser's Confidential Information. Each Party shall be entitled, in addition to any other remedies available to it, to injunctive relief for any violation of this Section.
5. Representations and Warranties.
A. Media Company represents and warrants to Client, as of the Effective Date, the following:
(i) It shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services.
(ii) The Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in the applicable Order.
(iii) EXCEPT AS STATED IN THIS SECTION 5.A, MEDIA COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
B. Media Company's sole and exclusive liability and Client's sole and exclusive remedy for breach of the warranties contained in Section 5.A shall be as follows:
(i) Media Company shall use commercially reasonable efforts to cure any such breach; provided that if Media Company cannot cure such breach within a reasonable time after Client's notice of such breach, Client may at its option, terminate this Agreement by serving written notice to Media Company of termination in accordance with this Agreement.
(ii) In the event the Agreement is terminated pursuant to Section 5.B(i) above, Media Company shall within 30 days after the effective date of termination, refund to Client any fees paid by Client as of the date of termination for Services, less a deduction equal to the fees for receipt or use of the Deliverables or Services up to and including the date of a termination on a pro-rated basis.
(iii) The foregoing remedy shall not be available unless Client provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Client.
C. Client represents and warrants to Media Company, as of the Effective Date, the following:
(i) Client has the requisite power and authority to execute the applicable Order and to enter into the transactions contemplated in this Agreement, including without limitation, granting the licenses set forth in Section 3.A
(ii) Client has good and marketable title to, or a valid license to use and transfer, all Client Data. Client has complied with all applicable laws and regulations in collecting (or allowing Media Company to collect), transferring, and using such Client Data. Where required, Client has given proper notices and received all proper consents in collecting (or allowing Media Company to collect) the Client Data.
(iii) Client shall not utilize the Services or Deliverables for any purpose other than that for which it was provided to Client by Media Company, unless Client obtains Media Company's prior written consent. Client shall not disclose or otherwise provide the Deliverables to any third party, unless Client obtains Media Company's prior written consent.
(iv) Client shall not merge the Deliverables with any Personally Identifiable Information otherwise in Client's control or possession. Client shall maintain and store the Deliverables separate and apart from the location of any Personally Identifiable Information and shall ensure access to the Deliverables is subject to commercially reasonable security measures.
(v) Client shall notify Media Company within three (3) business days of Client's discovery of any unauthorized access to the Deliverables and provide Media Company with any additional information concerning any unauthorized access as Media Company may reasonably require.
(vi) Client has clearly and conspicuously posted on Client's website a notice containing the following information:
(a) That Client, or third parties, including Media Company, may collect data on Client's website from users that is used for retargeted advertising, interest-based advertising, and other similar or related purposes;
(b) A description of the types of data, including Personally Identifiable Information, that is collected from users;
(c) A description of how data is collected (e.g. by using the Collection Devices);
(d) An explanation of the purposes for which user data is collected by, or will be transferred to, third parties, that includes disclosure of the linking of two or more devices likely used by the same user, if applicable;
(e) A conspicuous link to an opt-out mechanism that allows a user to opt-out of data collection for retargeted advertising or interest-based advertising purposes.
(vii) Client will comply with all applicable laws that relate to individual third party privacy and publicity rights and will be solely responsible for the operation of all websites and applications owned or operated by Client.
6. Indemnification. Client shall defend, indemnify and hold harmless Media Company and Media Company's subsidiaries, affiliates, successors, and assigns and their respective owners, managers, directors, officers, employees, and agents, from and against any and all loss, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder arising out of or related to: (i) Client's breach of the representations and warranties contained in Section 5.C; or (ii) Client's violation of applicable law.
7. Term and Termination.
A. The term of this Agreement commences on the Effective Date and continues until the Services are completed, or until this Agreement is earlier terminated as provided herein.
B. Either Party may terminate this Agreement by providing 30 days written notice to the other Party.
C. Upon termination of this Agreement for any reason, Client shall pay Media Company for all fees incurred prior to the effective date of termination.
8. LIMITATION OF LIABILITY.
A. IN NO EVENT SHALL MEDIA COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT MEDIA COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
B. IN NO EVENT SHALL MEDIA COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MEDIA COMPANY PURSUANT TO THIS AGREEMENT.
9. Waiver. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10. Subcontractors. Client acknowledges that Media Company may use subcontractors to perform all or a portion of the Services, provided that such subcontractors shall be bound by confidentiality provisions substantially similar to those contained herein.
11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any litigation arising out of this Agreement shall be litigated exclusively in the state or federal courts located in the State of New York.
13. Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
14. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing.
15. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Survival. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, this Section 16 and the following provisions: Section 3, Section 4, Section 5, Section 6, Section 8, Section 11, and Section 12.
17. Entire Agreement/Amendment and Modification. This Agreement, together with any applicable Orders, constitutes the sole and entire agreement of the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement may only be amended or modified in a writing that specifically states that it amends this Agreement and is signed by an authorized representative of each Party.