The following terms and conditions (the “Standard Terms”) shall govern the use of the Integral Ad Science, Inc. (“Integral”) products and services (the “Services”) described in the Integral Ad Science Pub Expert Statement of Work (“SOW”) entered into between you and Integral. If you are entering into these Standard Terms on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to these Standard Terms, in which case “you” or “your” shall mean such entity. If you do not have such authority or if you disagree with any of the terms in these Standard Terms, Integral does not grant you a license to use the Services. In the event of any inconsistency between these Standard Terms and the SOW, these Standard Terms control, except in such case wherein terms in the SOW explicitly override related terms in these Standard Terms, specifically referencing overridden terms of these Standard Terms and clearly using the term “override” (or “overrides”) to denote the override; in this case of an explicit override, the terms of the SOW shall govern. Integral reserves the right to update and change, from time to time, these Standard Terms.
- Use of Services. Subject to these Standard Terms and payment of any fees pursuant to Section 2 below, Integral hereby grants you a license to access and use the Services listed in the SOW and the Integral Data (as defined in the SOW).
- Fees. You shall pay Integral all fees set forth in the SOW (collectively, the “Fees”). All undisputed Fees are nonrefundable and are payable within thirty (30) days of receipt of the invoice. Integral 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 you fail to make timely payment, you will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Integral in collecting such amounts. Where Fees are calculated according to numbers of impressions, then (save as may otherwise be agreed by the parties) those impressions shall be counted and calculated by Integral according to reasonable industry standards, and (for the avoidance of doubt) may include impressions which occur after the end of a campaign or following the termination of these Standard Terms as a result of Customer failing to remove one or more tags. In addition, you will be responsible for all taxes in connection with the Services (excluding taxes based on Integral’s net income).
- Intellectual Property.
(a) Integral owns, and shall continue to own, all intellectual property and other proprietary rights in and to all portions of the Services and Integral Data.
(b) You agree not to use, transfer, distribute, or dispose of any information contained in the Services or in any Integral Data in any manner that could compete with the business of Integral. Except as otherwise provided in the SOW, You may not (i) sell, resell, license, distribute, transfer or otherwise exploit any Integral Data to any third party; (ii) publicly disclose or publish any Integral Data in its entirety, or the substantial equivalent of the same; (iii) use the Integral Data to create white or black lists; (iv) reverse engineer or attempt to reverse engineer the Services; or (v) allow a third party to do any of the above. You will not remove or obscure any copyright, trademark or patent notices that appear on the Services. All rights not specifically granted to you hereunder are retained by Integral.
(b) You own and shall retain all rights in and to content and materials that you use in connection with the Services (“Your Materials”). Integral does not acquire any interest in Your Materials by virtue of providing the Services. Notwithstanding the foregoing, you hereby grant Integral a limited license during the term of the SOW to use Your Materials solely to the extent necessary to provide the Services to you. Except for the limited rights set forth in Section 1, you do not acquire any interest in the Services by virtue of entering into the SOW or these Standard Terms.
- Confidential Information.
(a) “Confidential Information” means any proprietary information, technical data, trade secrets or know-how, including, but not limited to research, product plans, products, services, customers, customer lists, user names and information, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by one party (as the “Disclosing Party”) to the other (as the “Receiving Party”) either directly or indirectly in writing or orally. Confidential Information does not include information which (i) is known to the Receiving Party at the time of disclosure to the Receiving Party by the Disclosing Party as evidenced by written records of the Receiving Party; (ii) has become publicly known and made generally available through no wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party who is authorized to make such disclosure; or (iv) is independently developed by the Receiving Party without use of Confidential Information as evidenced by written records of the Receiving Party.
(b) Except as otherwise provided herein, the Receiving Party shall not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the performance of the Services or disclose the Confidential Information to any third party. It is understood and agreed that the Confidential Information will remain the sole property of the Disclosing Party. Receiving Party shall at all times maintain as secret and confidential all Confidential Information and shall take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. In no event shall the Receiving Party publish, disclose or otherwise make accessible any Confidential Information to any third party, except as expressly contemplated hereunder, without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by the order or requirement of a court, administrative agency or other governmental body, provided that the Receiving Party first provides the Disclosing Party prompt notice of such required disclosure and maintains confidentiality to the greatest extent permissible.
(c) On termination of these Standard Terms or at any time during or after the term of these Standard Terms, at the Disclosing Party’s written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed; provided, however, that a party may retain on a confidential basis one copy of the Confidential Information in order to comply with legal or regulatory requirements and/or internal document retention policies as well as any and all (i) e-mails and any attachments contained in such e-mails and (ii) any electronic files, each of which are automatically saved. Any Confidential Information that is not returned or destroyed, including, without limitation, any oral Confidential Information, shall remain subject to the confidentiality obligations set forth in these Standard Terms.
- Disclaimer. THE SERVICES ARE PROVIDED TO YOU “AS IS” AND INTEGRAL EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. INTEGRAL DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. INTEGRAL SHALL NOT BE LIABLE TO YOU FOR ANY INOPERABILITY OF THE SERVICES OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. ANY MODIFICATION OF THE SERVICES OR COMBINATION OF THE SERVICES WITH ANOTHER PRODUCT OR SERVICES, EXCEPT AS SPECIFICALLY AUTHORIZED BY INTEGRAL IN WRITING, SHALL VOID ANY WARRANTY.
(a) You agree to indemnify, defend and hold harmless Integral and its officers, directors, and employees (each, an “Integral Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”) awarded against an Integral Indemnitee in a final judgment arising out of or resulting from any third party claim, suit action or proceeding (each, an “Action”) arising out of or resulting from (i) Your use of the Services and Integral Data in breach of these Standard Terms, except to the extent caused by a breach of these Standard Terms by Integral, or (ii) Your gross negligence or willful misconduct.
(b) Integral agrees to indemnify, defend and hold harmless You, and Your officers, directors, and employees (each, a “Customer Indemnitee”) from and against any and all Losses awarded against a Customer Indemnitee in a final judgment arising out of or resulting from any third party Action arising out of or resulting from (i) a claim that the Services, as provided by Integral without alteration by You, directly infringes upon any third party copyright, U.S. trademark, U.S. trade secret, or U.S. patent that has been issued as of the effective date of the SOW, (ii) Integral’s breach of these Standard Terms, or (iii) Integral’s gross negligence or willful misconduct. This Section 6(b) shall not apply to the extent any Losses arise from: (a) Your use of the Services and Integral Data in breach of these Standard Terms; or (b) the combination, operation, or use of the Services with any product or services not provided or authorized by Integral.
(c) If the Services should become the subject of any copyright, trademark, trade secret or patent infringement claim subject to indemnification as set forth above, or Integral reasonably believes that such event is likely to occur, Integral, at its expense and discretion, will either: (i) secure for You the right to continue using the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) if Integral determines in its sole discretion that it is not commercially practicable for Integral to achieve (i) or (ii) above, Integral will have the right to terminate these Standard Terms and SOW and provide You with a pro rata refund of any pre-paid portion of the Fees (if any). The foregoing states the entire liability of Integral, and Your sole and exclusive remedy, with respect to infringements of any copyrights, trademarks, trade secret or patents by the Services.
(d) The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting complete control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in defense and settlement of such claim, action, suit or proceeding. The indemnified party may participate in any action, at its own expense, with its own counsel. The indemnifying party will not acquiesce to any judgment or enter into any settlement unless it secures a full and final release of all claims against the indemnified party.
- Limitation of Liability. EXCEPT FOR EACH PARTY’S OBLIGATIONS OF INDEMNIFICATION, A BREACH OF CONFIDENTIALITY OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THESE STANDARD TERMS, ANY SOW HEREUNDER OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND (B) 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 FEES PAID TO INTEGRAL BY YOU DURING THE MOST RECENT TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- Term and Termination. These Standard Terms shall commence on the date set forth in the SOW and shall continue in accordance with the term set forth in the SOW. These Standard Terms and any SOW shall terminate thirty (30) 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, unless such party cures such breach within said thirty (30) day period. Integral may immediately suspend Your use of the Services, without notice, (a) if deemed reasonably necessary by Integral to prevent any harm to Integral’s network, its business, reputation or its other customers. If you have any questions about the termination of any part of the Services, please contact us at firstname.lastname@example.org. All provisions of these Standard Terms which by their nature should survive termination shall survive termination, including, without limitation, Sections 3-8 and 10.
- Public Statements and Use of Marks. Neither party shall (a) make any public statements or announcements, or statements to third parties, regarding the Services provided by Integral under these Standard Terms and the SOW, or (b) use the other party’s trademarks or logos, in each case, without obtaining prior written approval from the other party in each instance.
- Miscellaneous. These Standard Terms and the SOW are the entire agreement between you and Integral with respect to the Services, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Integral with respect to the Services or any other of the subject matter hereof. If any provision of the Standard Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Standard Terms will otherwise remain in full force and effect and enforceable. No failure of Integral to enforce any of its rights under these Standard Terms will act as a waiver of such rights. These Standard Terms are personal to you, and are not assignable, transferable or sublicensable by you except with Integral’s prior written consent. Integral may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Standard Terms and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Standard Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Standard Terms will be in writing 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 to the address specified in the SOW or such other address as may be properly specified by written notice hereunder. These Standard Terms shall be governed by the laws of the State 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 County, New York.