EVALUATION TERMS AND CONDITIONS
The following terms and conditions (“Evaluation Terms and Conditions”) shall govern the use of the products and solutions described in the Trial Order Form (“Order”) entered into between you (“Client”) and Integral Ad Science, Inc., or one of its affiliates (collectively referred to herein as “IAS”). If Client elects to utilize or enable any Trial Services (defined below), Client’s use of and access to any such Trial Services shall be subject to the terms of these Evaluation Terms and Conditions.
(a). Subject to the terms and conditions set forth herein, during the Evaluation Period (as defined in the Order Form) IAS hereby grants Client a non-exclusive, non-transferable license to access and use the IAS solutions listed in the Order Form, the IAS Data, and the IAS Materials (each as defined below and collectively referred to herein as the “Trial Services”), solely for evaluation purposes by Client (the “Evaluation License”).
(b). As used herein, “IAS Data” means any data and information that (a) is provided by IAS to Client in connection with Client’s use of the Trial Services, (b) results from Client’s use of the Trial Services or is collected by IAS through the provision of the Trial Services to Client; and/or (c) is derived from any of the foregoing, including, without limitation, all lists or other records containing any such information.
(c). The Evaluation License shall cease to function after the expiration of the Evaluation Period. At such time, Client may enter into an agreement for access to and use of the Trial Services by contacting IAS and agreeing to the appropriate terms and applicable fees. For clarity, where Client is acting as agent for an advertising client, the Evaluation License is only granted to Client for use on the advertising campaigns of the specific Agency Client identified in the Order Form.
2. Obligations; Evaluation License Restrictions.
(a). Client will comply with the requirements and implementation specifications (“Specifications”) provided to Company by IAS (including, without limitation, any and all specifications related to (i) the proper insertion and removal of any advertising tags, cookies, pixels, or other code or similar technology that are provided by IAS to Company and used in connection with the provision of the Trial Services; (ii) the IAS user interface utilized by Client in connection with the Trial Services, and (iii) all documentation related to the Trial Services, including user manuals, operating manuals, and other instructions, specifications, documents, and materials in any form or media, that describe any component, feature, requirement, or other aspect of the Trial Services, including any documentation relating to functionality, testing, operation or usage of the Trial Services (collectively the “IAS Materials”). Client acknowledges that if it does not comply with the Specifications to enable the provision of the Trial Services to Client, the Trial Services may be inoperable or may not function as intended.
(b). Client represents and warrants that it (i) has the full legal right and authority to execute this agreement and comply with its obligations in connection with the performance of the Trial Services, and (ii) will comply with all applicable laws and regulations relating to the Trial Services.
(c). Client represents and warrants that it is entering into this Order Form and intends to use the Trial Services as a bona fide potential customer of IAS and that Client will not (and will not permit others) to use, transfer, distribute, or dispose of any information contained in the Trial Services in whole or in part, to develop, distribute, provide or use any product or service that competes with IAS, or in or for any purpose, manner or application that disadvantages IAS or IAS’s business or operations. Except as otherwise provided herein, Client may not (i) sell, resell, license, distribute, transfer or otherwise exploit any Trial Services to any third party; (ii) publicly disclose or publish any Trial Services in its entirety, or the substantial equivalent of the same; (iii) reverse engineer or attempt to reverse engineer the Trial Services; (iv) remove or circumvent any protection or other restrictive technology mechanism of the Trial Services; or (v) permit a third party to do any of the above. Client will not remove or obscure any copyright, trademark or patent notices that appear on the Trial Services. All rights not specifically granted to Client hereunder are retained by IAS.
If Client or its employees or contractors sends or transmits any communications or materials to IAS by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), IAS is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to IAS on its behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and IAS is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although IAS is not required to use any Feedback.
4. Intellectual Property.
(a). Client. Client owns and shall retain all rights in and to Client’s pre-existing intellectual property, including ad creatives, ad content, and ad impressions, provided to IAS by Client in connection with Client’s use of and access to the Trial Services (“Client Materials”). IAS does not acquire any interest in Client Materials by virtue of providing the Trial Services. Notwithstanding the foregoing, Client hereby grants IAS a worldwide license during the Evaluation Period to use Client Materials solely to the extent necessary to provide the Trial Services to Client, perform all obligations and enforce all rights under the Agreement, and improve the Trial Services.
(b). IAS. Except for the Evaluation License set forth in Section 1, Client does not acquire any interest in the Trial Services by virtue of entering into the Order Form. IAS owns, and shall continue to own, all intellectual property and other proprietary rights in and to all portions of the Trial Services (including, but not limited to, any and all modifications or improvements to the Trial Services).
5. Confidential Information.
(a). Confidential Information. Confidential Information shall include, without limitation, all technical and non-technical information (including, but not limited to, product information, plans and pricing, financials, marketing plans, business strategies, customer information, data, processes, techniques, research and development, software and hardware, APIs, specifications, designs, schematics, procedures, trade secrets, know-how, proprietary formulae and proprietary algorithms), disclosed by or on behalf of one party (including all of its subsidiaries and affiliates) (“Disclosing Party”) to the other party (“Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, as well as all analyses, compilations, studies or otherwise that reflect such information. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the Receiving Party; (iii) is rightfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; or (vi) is approved for release or disclosure by the Disclosing Party without restriction.
(b). Confidentiality Obligations. Except as expressly permitted herein, the Receiving Party shall maintain the Confidential Information of the Disclosing Party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information. The Receiving Party shall use the Confidential Information of the Disclosing Party solely for the purpose of this Order Form and shall not use such Confidential Information in any way detrimental to the Disclosing Party or for any other purpose (including, without limitation, to reverse engineer, dissemble, decompile or design around the Disclosing Party’s products, services and/or confidential intellectual property). The Receiving Party shall take all necessary precautions in handling the Confidential Information of the Disclosing Party and limit disclosures on a strict need-to-know basis. However, the Receiving Party may disclose Confidential Information of the Disclosing Party if required by law or regulation or pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with: (x) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expenses, a protective order or other remedy; and (y) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. Notwithstanding the Receiving Party’s failure to obtain a protective order or other remedy, the Receiving Party agrees on behalf of itself and its representatives to (a) only disclose or furnish that portion of the Confidential Information which is legally required based on an opinion of counsel provided to both parties, and (b) utilize reasonable efforts to obtain reliable assurances that the person receiving such Confidential Information will maintain the confidentiality of the same. Upon the termination or expiration of this Order Form, the Receiving Party shall return to the Disclosing Party, or certify the destruction of, all Confidential Information of the other party, provided that, the Receiving Party shall not be obligated to purge archived data if the obligations of this Section 5 continue to be strictly observed.
6. Disclaimer. THE TRIAL SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND IAS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. IAS DOES NOT WARRANT THAT THE TRIAL SERVICES WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. IAS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY ACT OR OMISSION OF ANY THIRD PARTY IN RELATION TO THE TRIAL SERVICES. FURTHERMORE, IAS SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CUSTOMER’S FAILURE OR INABILITY TO COMPLY WITH ANY THIRD-PARTY OBLIGATIONS IN RELATION TO THE TRIAL SERVICES. ANY MODIFICATION OF THE TRIAL SERVICES OR COMBINATION OF THE TRIAL SERVICES WITH ANOTHER PRODUCT OR TRIAL SERVICES, EXCEPT AS SPECIFICALLY AUTHORIZED BY IAS IN WRITING, SHALL VOID ANY WARRANTY.
7. Infringement. If the Trial Services should become the subject of any copyright, trademark, trade secret or patent infringement claim or IAS reasonably believes that such event is likely to occur, IAS, at its expense and discretion, will either: (a) secure for Client the right to continue using the Trial Services; (b) replace or modify the Trial Services so as to make it non-infringing; or (c) if IAS determines in its sole discretion that it is not commercially practicable for IAS to achieve (a) or (b) above, IAS will have the right to terminate the Order Form without any resulting obligation or liability to the Client by reason of such termination. The foregoing states the entire liability of IAS, and Client’s sole and exclusive remedy, with respect to infringements of any copyrights, trademarks, trade secret or patents by the Trial Services.
8. Limitation of Liability.
Excluding each party’s indemnification obligations, in no event will either party be liable to the other party for any special, indirect, incidental or consequential damages (including without limitation, loss of use, data, business or profits, costs of cover, or costs of media) arising out of or in connection with the Order Form or the use or performance of the Trial Services, whether such liability arises from any claim based upon contract, warranty, tort (including, without limitation, negligence), product liability or otherwise, and whether or not it has been advised of the possibility of such loss or damage.
Each party’s cumulative liability to the other party, from all causes of action and all theories of liability, will be limited to and will not exceed the greater of (i) the evaluation fee paid or payable to IAS during the evaluation period or (ii) $5,000. the foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose.
9. Payment Terms.
If applicable, all undisputed Evaluation Fees are nonrefundable and are payable within thirty (30) days of receipt of the invoice via ACH or wire transfer. If Client disputes the validity of an invoiced Evaluation Fee, Client must provide prompt written notice within thirty (30) days of its receipt of the applicable invoice to IAS stating the details of any such dispute; provided that if Client fails to notify IAS within ninety (90) days of the dispute, Client waives it right to bring a dispute related to an invoiced fee. IAS reserves the right to charge a late fee on any amount not paid after fifteen (15) days of receipt of written notification of non-payment equal to 1.5% per month (or, if lower, the maximum rate allowed by law) on the outstanding balance for the period such payment is delinquent. In the event Client fails to make timely payment, Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by IAS in collecting such amounts. In addition, Client will be responsible for all taxes in connection with the Trial Services (excluding taxes based on IAS’s net income).
10. Evaluation Period.
Client shall have access to the Trial Services for the period indicated in the Order Form (“Evaluation Period”). The Evaluation Period may be extended by the mutual written agreement of the parties (email sufficient).
11. Termination; Obligations upon Termination.
(a). Termination for Cause. The Order Form shall terminate fifteen (15) days after a party’s receipt of written notice that such party is in material breach of any of the terms or conditions set forth herein or in the Order Form unless such party cures such breach within said fifteen (15) day period.
(b). Termination for Convenience. Either party may terminate the Order Form at any time, for any reason, upon seven (7) days prior written notice to the other party.
(c). Removal of IAS Materials. Promptly upon expiration or termination of the Order Form for any reason, Client shall pay any unpaid and outstanding Fees due to IAS, if applicable. If Client does not enter into a new agreement for continued use of the Trial Services, Client shall cease using the Trial Services and all IAS Materials provided in connection with the Trial Services within thirty (30) days of the expiration or termination of the Order Form. If Client fails to cease using the Trial Services pursuant to the previous sentence, IAS may, in its sole discretion, charge Client for such continued use at the Evaluation Fee, or current standard rates, as applicable, until such IAS Materials are removed.
(d). Survival of Terms. All provisions of the Evaluation Terms and Conditions which by their nature should survive termination shall survive termination, including, without limitation, confidentiality, intellectual property ownership provisions, warranty disclaimers, and limitations of liability.
12. Data Protection.
(a). For Clients utilizing Trial Services provided by Integral Ad Science, Inc., in performing the Trial Services, IAS may process Personal Data. This processing of Personal Data shall be governed by the Data Protection Terms set out at integralads.com/data-protection which shall be incorporated into these Evaluation Terms and Conditions and form an integral part of the Order Form.
(b). For Clients utilizing Trial Services provided by Publica LLC (“Publica”), in performing the Trial Services, Publica may process Personal Data. This processing of Personal Data shall be governed by the Data Protection Terms set out at https://www.getpublica.com/eu-data-protection-terms which shall be incorporated into these Evaluation Terms and Conditions and form an integral part of the Order Form.
(a). Export Controls, Sanctions, and Anti-Corruption Laws. Client shall not export, re- export, transfer, or use the Trial Services in violation of (i) the Export Administration Regulations or any other applicable export controls, (ii) applicable economic sanctions laws, including those administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) (collectively, “Sanctions”), or (iii) the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable laws related to the prevention of corruption or bribery. Client shall ensure that Trial Services are not provided to or used or accessed by (i) any person who is subject to Sanctions, including those on OFAC’s Specially Designated Nationals and Blocked Persons List, or (ii) persons resident, located, or organized in any country subject to comprehensive Sanctions (currently Cuba, Iran, North Korea, Syria, Venezuela, or the Crimea region of Ukraine). IAS shall have the right to immediately terminate the Order Form without notice should a breach of the foregoing terms occur.
(b). If any provision of these Evaluation Terms and Conditions or the Order Form is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Order Form will otherwise remain in full force and effect and enforceable. No failure of IAS to enforce any of its rights under the Order Form will act as a waiver of such rights.
(c). The Order Form and these Evaluation Terms and Conditions are personal to Client, and are not assignable, transferable or sublicensable by Client except with IAS’s prior written consent. IAS may assign, transfer or delegate any of its rights and obligations hereunder without consent.
(d). No agency, partnership, joint venture, or employment relationship is created as a result of the Order Form and neither party has any authority of any kind to bind the other in any respect.
(e). All notices will be in writing to the address set forth in the Order Form and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
(f). In any action or proceeding to enforce rights under the Order Form, the prevailing party will be entitled to recover costs and attorneys’ fees. The Order Form and these Evaluation Terms and Conditions shall be governed by the laws of New York without regard to its conflicts of law provisions and each party consents to exclusive jurisdiction and venue in the courts located in New York, New York.