Master Services Agreement
Phluant, Inc. (“Phluant”), a Delaware corporation shall provide digital advertising and/or data services (the “Services”) to a Client via a managed service, an online application and/or platform operated by Phluant (the “Platform”).
This agreement sets out the terms and conditions on which you, as an advertiser (the “Advertiser”) may access and use the Services to purchase advertising inventory, create advertisements and/or conduct Campaigns via the Platform.
1.1 The Services and related pricing are set forth in the schedules (the “Schedules”) to these general terms (the “General Terms”). The Schedules may be attached to this Agreement or provided on the form of a subsequent Campaign Insertion Order (“IO”). Together the General Terms and Schedules and all subsequent agreed Schedules attached to this Agreement constitute an agreement (the “Agreement”) between Phluant and Client.
1.2 IAB/AAAA Terms. Phluant Services are subject to the Definitions and Sections II, IV, V, VI, IX, X(a) &(b), XI, XII and XIV of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less Version 3.0 (“IAB Standard Terms”) (which are incorporated herein by reference), except as modified herein, and shall be binding on Advertiser. For the purpose of clarity, (a) Phluant, when applicable, will use good faith efforts to include the relevant provisions of the IAB Standard Terms noted above in its agreements with Publishers but does not guarantee such terms will be accepted by Publishers, and (b) in the event of any conflict between these Platform Terms and the IAB Standard Terms, the Platform Terms shall control. Any capitalized terms used but not defined below shall have the meaning ascribed to them in the IAB Standard Terms. These Platform Terms together with those provisions of the IAB Standard Terms incorporated herein are sometimes referred to together as the “Agreement. 1.3 The Services may allow Client to plan, select, traffic, upload, optimize and report advertising campaigns (“Ad Campaigns”) using the Client’s creatives in a variety of formats, including, without limitation, text-based, graphical, interactive, rich media, social, e-mail or video formats (individually or collectively, “Creatives”).
1.4 Phluant shall provide user support for the Platform and the Services as set forth in the applicable Schedules. Nothing herein or in any warranty shall obligate Phluant to deliver support services in excess of what is described in the Schedules.
1.5 Client shall cooperate with Phluant as reasonably required for Phluant to perform the Services in a timely and professional manner in accordance with applicable professional manner.
2.1 Terms. Payments to Phluant are due as listed in each applicable Schedule. Late payments shall accrue interest at a rate equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate allowed by law. Phluant may, in its sole discretion and upon written notice to Client, suspend delivery of any Ad Campaign or access to the Services or the Platform if an invoice is not paid when due. If Client’s credit is or becomes impaired, Phluant may require payment in advance and may suspend delivery of any Ad Campaign or access to the Services or the Platform until it has received such advance payment.
2.2 Calculations. During the Term of this Agreement, Client agrees to pay Phluant based on the pricing specified in the Schedules. Client will also reimburse Phluant for any out-of-pocket expenses incurred by Phluant that are pre-approved in writing by Client. Phluant will invoice Client for the amounts due to Phluant (the “Fees”). As between Phluant and Client, Phluant’s Platform will be the system of record in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed, and as between Phluant and Client, Phluant will be solely responsible for determining charges to Client hereunder.
2.3 Discrepancies. If there is a discrepancy of more than 15% between Phluant’s metric and Client’s third-party ad server metric or a publisher’s ad server metric, Phluant will use commercially reasonable efforts to reconcile the discrepancy.
2.4 Preliminary Reports. Numbers provided prior to final invoicing via the Platform or otherwise are preliminary and subject to adjustment.
2.5 Disputes. On receipt of invoice Client shall have seven days to query or dispute such invoice after which time the invoice shall be deemed to be accepted by Client and no further query or dispute may be raised by Client. In the event of any good faith dispute regarding a portion of an invoice, Client shall pay the undisputed Fees when due.
2.6 Currency. The Fees are payable in United States dollars (“Dollars”) unless otherwise specified.
2.7 Taxes. The Fees are exclusive of any Taxes. “Taxes” means any sales, use, transfer, privilege, excise, VAT, GST, consumption tax, or other similar taxes and duties, whether foreign, national, state or local, however designated, present or future, that are levied or imposed by reason of the performance by Phluant or Client under this Agreement, excluding taxes on Phluant’s net income. Client will be responsible for paying, at the same time it pays the Fees, any Taxes imposed on the Fees. Client will be responsible for timely paying in full all other Taxes. If Client is required to make any deduction, withholding or payment on account of any Taxes in any jurisdiction in respect of any amounts payable hereunder by Client to Phluant, such amounts will be increased to the extent necessary to ensure that after the making of such deduction, withholding or payment, Phluant receives when due and retains (free from any liability in respect of any such deduction, withholding or payment) an amount equal to what would have been received and retained had no such deduction, withholding or payment been required or made.
2.8 Prepayments. Prepayments are not refundable unless Client terminates pursuant to section 7.2 or Phluant terminates pursuant to section 7.4.
3.1 Phluant acknowledges it does not have any ownership rights or ownership interest in the Creatives or in any other materials provided by Client to Phluant under this Agreement as well as Client’s trademarks, copyrights, patents and all other intellectual property (collectively with the Creatives, “Client Intellectual Property”). Phluant agrees that the use of Client Intellectual Property on the Platform inures to the benefit of Client, including any goodwill therein, and that Phluant will not acquire any ownership or rights in Client Intellectual Property as a result of this Agreement.
3.2 Client acknowledges that it does not have any ownership rights or ownership interest in Phluant’s know-how, processes and methodologies; the Platform; Phluant’s pre-existing and independently developed materials; and Phluant’s trademarks, copyrights, patents and all other intellectual property (collectively, “Phluant Intellectual Property”). All modifications, upgrades, derivative works and enhancements, including without limitation any Client suggestions for new features or functionality of the Platform, are the sole property of Phluant. Client agrees that its use, if any, of Phluant Intellectual Property inures to the benefit of Phluant, including any goodwill therein, and that Client will not acquire any ownership or rights in Phluant Intellectual Property as a result of this Agreement.
3.3 Phluant hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use the Platform solely for the purpose of planning, selecting, trafficking, uploading, optimizing and reporting Ad Campaigns or gaining insights through brand intelligence in accordance with the terms and conditions of this Agreement. Client is responsible for all use of the Platform through Client’s credentials. Except as set forth in this Agreement, Client agrees not to (a) use or authorize use of the Platform for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Platform or access thereto; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Platform or any portion thereof; (d) test the Platform for vulnerabilities or service limitations; (e) use the Platform for the purposes of developing a product, program or service that will be owned by a third party or that would compete with Phluant’s products or services; (f) use the Platform in any way which adversely affects Phluant or other third parties; (g) access data of any third-party without authorization; (h) circumvent any privacy features (e.g., an opt-out) that are part of the Platform; (i) seek, in a proceeding filed during the Term, an injunction on any part of the Platform based on patent infringement or (j) attempt to do any of the foregoing
3.4 Phluant is not obligated to retain Client’s data after the termination of this Agreement.
4.1 Phluant represents and warrants to Client that:
4.1.1 Phluant has all necessary right and authority to enter into this Agreement and provide the Platform to Client as required by this Agreement;
4.1.2 Phluant’s performance of the Services shall not knowingly violate any applicable law, rule, regulation or third-party privacy or intellectual property rights in any material respect; and
4.2 Client represents and warrants to Phluant that:
4.2.1 Client has all necessary right and authority to enter into this Agreement and has all licenses and authorizations necessary for Client’s use of the Platform;
4.2.2 Client’s performance under this Agreement and Client’s activities in connection with the Platform shall not violate any applicable law, rule, regulation or third party privacy or intellectual property rights in any material respect;
4.2.3 Client has sufficient substantiation for all claims made and shall fulfill all commitments set out in the Creatives; and
4.2.4 Client owns or otherwise has lawful right to use all Creatives and other materials provided by Client to Phluant under this Agreement and the Creatives and any other materials provided by Client to Phluant under this Agreement shall not: infringe, misappropriate or otherwise violate any third party’s intellectual property rights; breach any duty toward, or rights of, any third party, including rights of publicity or privacy; be false, deceptive, misleading, unethical, defamatory, libelous, threatening, abusive, tortious, defamatory, vulgar, obscene, hateful or objectionable (racially, ethnically or otherwise); promote activities that are unlawful or harmful; load computer programs onto a consumer computer or device without express consent; contain malware, viruses, or other potentially destructive computer programs and security threats; auto-redirect, auto-play audio or animate for longer than 15 seconds (US) or 30 seconds (elsewhere); or shake or flash excessively or fail to function; and
4.2.5 Client and its personnel are in compliance and will at all times remain in compliance with the Anti-Corruption Laws, as applicable, during the Term.
4.3 THE WARRANTIES IN THIS AGREEMENT (AND IN THE SCHEDULES) ARE THE PARTIES’ ONLY WARRANTIES CONCERNING THEIR RESPECTIVE OBLIGATIONS HEREUNDER, AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGMENT OR OTHERWISE.
5.1 Phluant shall adhere to:
5.1.1 the Network Advertising Initiative’s Code of Conduct (if applicable) and the Digital Advertising Alliance’s Self-Regulatory Program for Online Behavioral Advertising (if Client is delivering an Ad Campaign to the United States);
5.1.2 the Digital Advertising Alliance of Canada’s Canadian Self-Regulatory Principles for Online Behavioural Advertising (if Client is delivering an Ad Campaign to Canada); and
5.2 If Client receives information about end-users from the Services, Client shall not (a) attempt to merge such information with personally identifiable information held by Client for interest-based advertising purposes or (b) attempt to identify the individuals to whom the information pertains for interest-based advertising purposes; and
5.3 Client shall adhere to the Self Regulatory Programs.
6. Term. The term of this Agreement shall begin on the Effective Date, and shall continue for an Initial Period, and will renew for successive Renewal Periods (the “Term”). Either party may terminate this Agreement pursuant to Section 7 hereof.
7.1 Either party may terminate this Agreement (including all Schedules and all insertion orders issued thereunder) effective at the end of the then-current Initial Period or Renewal Period (the “Current Period”), at its convenience and without any breach by the other party, by providing written notice to the other party at least 30 days before the end of the Current Period.
7. 2 Either party may terminate this Agreement and all Schedules for material breach of any Schedule upon giving the other party at least 15 days prior written notice specifically identifying the alleged breach, provided that the breaching party does not cure such breach within the 15-day notice period. During this notice period the non-breaching party shall have the right to suspend its performance under this Agreement and, specifically and without limitation, Phluant may suspend delivery of any Ad Campaign or access to the Services or the Platform.
7.3 Either party may terminate this Agreement immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding that is not dismissed within sixty (60) days of the date of filing, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.
7.4 Phluant may terminate this Agreement pursuant to section 8.5.
7.5 Upon termination of this Agreement by either party, each party shall promptly return, as is commercially feasible, at the written request of the other party, all related data, materials and other property of the other held by it that has been so requested, provided that, subject to the confidentiality restrictions contained in Section 10, the delivering party may retain solely for record keeping purposes copies of the materials returned to the requesting party.
8.1 Phluant hereby agrees to indemnify, hold harmless and defend Client from and against all third-party claims, demands, actions, losses, damages or expenses (including reasonable attorney’s fees and court costs related to such defense) (collectively “Liabilities”) asserted by any third party where such Liabilities arise out of or result from: (1) fraudulent misconduct of Phluant in connection with its performance under this Agreement; (2) bodily injury or death of any person directly caused by the negligence of Phluant in connection with its performance under this Agreement; or (3) any breach by Phluant or its Affiliates, employees, agents or contractors of Sections 3 or 10.
8.2 Client hereby agrees to indemnify, hold harmless and defend Phluant and its Affiliates, and any member, director, officer, employee or agent thereof, against all Liabilities asserted by any third party where such Liabilities arise out of or result from: (1) fraudulent misconduct of Client in connection with its performance under this Agreement; (2) bodily injury or death of any person directly caused by the negligence of Client in connection with its performance under this Agreement; (3) any breach by Client or its Affiliates, employees, agents or contractors of Sections 3, 4.2.4 or 10; or (4) any claim that Client Intellectual Property infringes a copyright, patent, trade secret, trademark or any other proprietary right of a third party.
8.3 The indemnified party shall notify the indemnifying party promptly in writing of any such claim, and the indemnifying party shall have the sole control of the defense and all related settlement negotiations (unless any settlement involves anything other than the payment of money exclusively by the indemnifying party). The indemnified party shall provide the indemnifying party with reasonably requested assistance, information, and authority to perform the above. The indemnified party can participate in the defense with counsel of its choice at its own expense.
8.4 For the purposes of this Agreement, “Affiliate” is defined as any legal entity that is owned by a party or that owns a party or that is under common control with a party. “Control” or “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.
8.5 Notwithstanding any other provision in this Agreement, Client’s sole remedy for any claim that Phluant Intellectual Property infringes a copyright, patent, trademark or any other proprietary right of a third party (an “Phluant IP Claim”) shall be that Phluant will in its sole discretion: obtain the right for Client to continue to use the Services, update the Platform or Services to avoid infringement, or if none of the prior options are obtainable on commercially reasonable terms, terminate this Agreement upon notice to Client without further liability or obligation hereunder. Phluant will not indemnify Phluant IP Claims based on any modification or derivative of the Phluant Intellectual Property or any combination of the Phluant Intellectual Property with any technology, software or hardware not supplied or recommended by Phluant, if such alleged infringement would be avoided by the absence of such combination.
9. Limitation of Liability.
9.1 Except for damages arising pursuant to Sections 8 and 10 hereof, each party’s liability (whether in contract, tort, negligence, strict liability, by statute, or otherwise) to the other party or to any third party concerning performance or non-performance or otherwise related to this Agreement shall in the aggregate be limited to direct and actual damages not to exceed the Fees received by Phluant, excluding fees for media or third-party data, under this Agreement for the portion of the Services giving rise to such claim during the twelve (12) months immediately preceding the last event giving rise to the claim.
9.2 EXCEPT IN THE EVENT OF A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 8 OR A BREACH OF SECTION 10 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, OR LOST SAVINGS), EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
10. Confidential Information.
10.1 Each party agrees that the terms of this Agreement and any information that is identified as confidential, or that ought reasonably to be regarded as confidential (including, but not limited to business activities, financial information and results, pricing, contract terms, products, research, processes, methodologies, trade secrets, customers and technical knowledge disclosed by the other party in any form or medium (collectively “Confidential Information”) shall not, without the disclosing party’s authorization, be disclosed to any other party or used by the receiving party except as contemplated by this Agreement. The recipient shall protect the confidentiality of the Confidential Information using at least the same measures it takes to protect its own confidential information of like kind, so long as not less than reasonable care, and shall restrict access to Confidential Information to its employees on a need to know basis for the purposes of this Agreement.
10.2 Nothing in this Agreement shall restrict either party’s use of information: (a) that is or becomes publicly available through no breach of this Agreement; (b) that is independently developed by it without use of or reference to the disclosing party’s Confidential Information; (c) previously known to it without obligation of confidence; or (d) acquired by it from a third party that is not under an obligation of confidence with respect to such information. In the event either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the recipient shall promptly notify the other party of such receipt and may, thereafter, comply with such subpoena or process to the extent permitted by law; provided that the recipient shall disclose only such Confidential Information as is absolutely necessary and shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information that is being so disclosed. Confidential Information shall be returned or destroyed (provided that such destruction is certified in writing by an authorized representative of the disclosing party) upon the earlier of: (i) termination or expiration of this Agreement; or (ii) the disclosing party’s written request, which destruction shall include without limitation the complete erasure of any electronic file, folder, database or other electronic repository from all computer processing units on which the Confidential Information had been placed or stored
10.3 This section shall survive expiration and/or termination of this Agreement for three years except for trade secrets, which shall be protected so long as considered a trade secret under applicable law.
11. Beta Features.
11.1 Phluant will have no liability under the Agreement (including any indemnification obligations) arising out of or related to Client’s use of any Beta Features. A “Beta Feature” is a Platform feature or Service that is expressly identified as “Beta,” “Alpha,” “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported. Any use of Beta Features will be solely at Client’s own risk and may be subject to additional requirements as specified by Phluant. Phluant is not obligated to provide support for Beta Features, and Phluant may cease providing Beta Features as part of the Platform. Phluant may use and disclose any data derived from Client’s use of a Beta Feature for any purpose without Client’s consent as long as Phluant does not disclose results to third parties in such a manner as would identify or reasonably be expected to identify Client or any end users. Information regarding Beta Features is considered Confidential Information.
12. Relationship of Parties.
12.1 If Client is an agency (or otherwise is running Ad Campaigns for a third-party advertiser, such as in the case of a managed service provider), Client is liable to Phluant for the compliance of its advertisers with the representations, warranties and undertakings made by Client in this Agreement. Client will be liable for any breach caused by the actions or inactions of such a third-party advertiser whether or not Client has knowledge of such actions or inactions.
12.2 The parties agree that Phluant’s relationship with Client is that of an independent contractor and nothing in this Agreement shall be construed as creating a partnership, joint venture, pooling arrangement, partnership, employer-employee relationship, or formal business organization of any kind.
12. 3 Neither party shall have authority to bind the other except to the extent expressly authorized herein. This Agreement shall relate only to the Services specified in this Agreement, and shall not otherwise limit the rights of either party to subcontract, promote, market, sell, lease, license, or otherwise dispose of its products or services.
13. Precedence. In the event of a conflict in this Agreement among the Pricing Sheet, the applicable Schedule and the General Terms, the Pricing Sheet shall supersede the Schedule which shall supersede the General Terms. In the event of conflict between the Agreement and any insertion order issued thereunder, the Agreement shall supersede unless the conflict is specifically identified in the insertion order.
14. Assignment. Neither party may assign or transfer its interest hereunder without the prior written consent of the other party, except pursuant to a merger, acquisition, or sale of all or substantially all of its assets, such consent not to be unreasonably withheld or delayed. The Agreement will be binding upon and inure to the benefit of the parties’ permitted successors and assigns.
15. Publicity. Neither party shall make any public statement regarding this Agreement without the written consent of the other party. Phluant and Client intend to collaborate on one quarterly public communication, which may be in the form of a customer reference, blog post, case study, testimonial video, or public speaking event, and with the other party’s consent, each party may include the other party’s name and logo in its list of reference accounts. In any case, the parties will respect each other’s marketing and branding guidelines.
16. Severability. In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17. Entire Agreement. This Agreement, including its Schedules, constitutes the entire agreement of the parties and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. The parties may execute this Agreement in several counterparts, all of which together constitute one agreement between the parties.
18. Equitable Relief. The parties acknowledge that any breach of Sections 3 or 10 will result in irrevocable harm to the other party and that the remedies at law for such breach may not adequately compensate the non-breaching party for damages suffered. Accordingly, the parties agree that in the event of such breach, the non-breaching party will be entitled to seek injunctive relief or such other equitable remedy as a court of competent jurisdiction may provide. Nothing contained herein will be construed to limit the non-breaching party’s right to any remedies at law, including the recovery of damages for breach of this Agreement.
19. Governing Law and Jurisdiction.
19.1 This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New York, without regard to the conflict of laws provisions thereof. The parties hereby submit to the personal and subject matter jurisdiction of the state and federal courts located in New York, which shall be the exclusive venue for any such dispute.
19.2 In the event that litigation is brought by either party with regard to any dispute regarding this Agreement, the prevailing party shall be entitled to reimbursement of all costs of collection and enforcement, including court costs and reasonable attorneys’ fees.
20. Survival. Sections 2 – 4, 7.5 and 8 – 21 and 24 shall survive the expiration or earlier termination of this Agreement.
21. Third-Party Beneficiaries. Unless specifically stated otherwise in this Agreement, the parties do not intend any third party to be third-party beneficiaries or confer any rights or benefits on any third party.
22. Force Majeure. If the performance of this Agreement by either party, or of any obligation under this Agreement, other than the payment of the Fees, is prevented, restricted or interfered with by reason of war, revolution, civil riot, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, or any other act whatsoever, whether similar or dissimilar to those referred to in this section, which is beyond the reasonable control of the party affected (“Force Majeure Event”), such party shall, upon giving prior written notice to the other party, be excused from such performance to the extent such performance is prevented by a Force Majeure Event, provided that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performances, and shall continue performance whenever such causes are removed.
23. Modifications, Waiver. This Agreement shall not be amended or modified, nor shall any waiver of any right hereunder be effective unless set forth in a document executed by duly authorized representatives of both Phluant and Client. The waiver of any breach of any term, covenant or condition herein contained, or the failure of either party to seek redress for the violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same.
24. Notices. Any notice or other communication under this Agreement shall be in writing and shall be effective upon the earlier of actual receipt, five (5) days following deposit into the United States mail (certified mail, return receipt requested), the next business day following deposit with a nationally recognized overnight courier service, or the same day following transmission of a legible facsimile copy or email during regular business hours (with the original thereof posted first-class mail, postage prepaid, within two (2) business days thereafter), in each case with any delivery fees pre-paid and addressed to the party at the address set forth on the first page of this Agreement, or such other address provided to the other party in writing.