Kontent Room Platform Master Service Agreement
This Kontent Room Platform Master Service Agreement, including the Order Form and any terms set forth in a schedule or Exhibit hereto (collectively, this “Agreement” or “MSA”), dated as of Effective Date on the Order Form is entered into by Kontent Room LLC. (“Kontent Room”) and the customer whose details are set forth on the Order Form (“Customer”).
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Services” means, where applicable, the Advisory Services, Managed Services, Professional Services, and Platform Services.
“Advisory Services” means Kontent Room will provide support and assistance with Customer’s content and retargeting advertising campaign set up and management as well as proactive campaign monitoring.
“Managed Services” means an offering where Customer engages Kontent Room to deliver advertising campaign services using an Insertion Order and the Kontent Room managed services team executes and manages the advertising campaign. Kontent Room will index and upload the Customer’s content to the Platform, traffic content advertisements, trade, and manage the campaign(s) on Customer’s behalf. As such, the campaign will be managed by Kontent Room and will require the execution of an Insertion Order (IO) relative to campaign specifics.
“Professional Services” means the additional services that may be provided by Kontent Room personnel on behalf of Customer pursuant to a Statement of Work (“SOW”), or as further described in Exhibit B.
“Applicable Law” means an applicable law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate or resolution issued or enacted by any government entity (including any domestic or foreign, supranational, national, state, county, municipal, local, territorial or other government), or applicable guidelines or principles issued by any governmental entity.
“Agency” or “Managed Service Provider” means the advertising, media or creative agency or other professional services company that will provide services to a client in order to conduct advertising campaigns on the client’s behalf through the Kontent Room Platform.
“Customer” means the entity contracting with Kontent Room in order to use the Kontent Room Platform. If the Customer is an Agency, then Customer may be referred to as Customer or Agency.
“Client” means Customer or an advertising client of Customer.
“Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication including Customer Content and Kontent Room Content.
“Customer Content” means all Content made available by Customer or its Users to Kontent Room for use in connection with the Services.
“Kontent Room Content” means all Content made available by Kontent Room to Customer in connection with Customer’s use of the Services.
“Documentation” means the current user documentation, in any form, provided by Kontent Room relating to the Services (e.g., online help files) generally provided by Kontent Room to its customers.
“Objectionable Content” means any viruses, malware or malicious code, as well as any Content or links to web sites that contain Content (or further links to content) which would be reasonably construed as illegal, unethical, defamatory, obscene, hateful, libelous, or that otherwise would be reasonably determined to reflect negatively, in a material way, upon Kontent Room reputation or that of Kontent Room’s customers, or that infringes upon the rights of any third party.
“Third Party Terms” means the terms and conditions for use of services from third parties made available to Customer through the Kontent Room Platform, as described in Exhibit A.
“User” means an individual employee, agent or contractor of Customer or its Client who has been authorized by Customer to use the Services on behalf of Customer and its Clients.
“Insertion Order” or “Order Form” are used interchangeably in this document and carry the same meaning for the purposes of this agreement.
“Total Spend” means the sum of all spend recorded in the Kontent Room Platform inclusive of media spend, data costs, platform fees and production fees.
“Platform Credits” means the amount of credit that Kontent Room will provide to the Customer through their account on the Kontent Room platform. Platform Credits are used to fund campaign budgets created and managed on behalf of the Customer.
“Client Data” means data that Kontent Room collects through Kontent Room or third party tags on the Client’s properties which includes any information that can be attributed to a user via cookies or other technologies that record events related to user’s activity on Client’s properties (such as but not limited to the number pages viewed, the products the user viewed, user searches).
“Kontent Room Data” means data related to the Kontent Room ad serving activity in the form of content, ads or video such as but not limited to the number of ads displayed to a user and aggregated client data that does not identify or permit identification of a client.
“Kontent Room Sourced Data” means aggregated data provided by third parties independently of the provision of the Kontent Room Service to the Client and may include publisher data.
“Data” meand Client Data, Kontent Room Data and Kontent Room Sourced Data.
(a) License. Subject to the terms and conditions of this Agreement (including the timely payment of all applicable Fees), Kontent Room hereby grants Customer and its Users a non-exclusive, non-transferable, right and limited license to use the Services during the term of this Agreement solely for use on behalf of Customer and its Clients. Customer will ensure that Customer and its Users comply with the terms and conditions of this Agreement, all Applicable Law and the Third Party Terms set forth on Exhibit A hereto, as applicable. As between Customer and Kontent Room, Customer shall be solely responsible for ensuring that its use of the Services complies with all self-regulatory best practice standards including, but not limited to the IAB Code of Conduct, Network Advertising Initiatives (NAI) Self-Regulatory Principles, the NAI Web Beacon Guidelines and the FTC Self-Regulatory Principles for Online Behavioral Advertising.
(b) Equipment. Customer is responsible for procuring and maintaining the equipment and network connections necessary to remotely connect to the Services. Customer shall not attempt to access any other of Kontent Room’s systems, programs or data that are not made available for Customer’s use in connection with the Services.
(c) Customer Responsibility/Restrictions. Customer is responsible for all activities conducted under this Agreement. Unauthorized use, resale or commercial exploitation of the Kontent Room Platform in any way is expressly prohibited. Customer represents and warrants (i) it will not upload to or otherwise authorize or permit any Objectionable Content to run through the Kontent Room Platform and that any ads or data being authorized or permitted by Customer to run through the Kontent Room Platform will be free of viruses and malicious code (ii) it is authorized to act on behalf of each of its Clients, will ensure that such Clients and all Users comply with the applicable terms and conditions of this Agreement and will be liable for the acts and omissions of such Clients and Users in connection with the Kontent Room Platform provided under this Agreement or for any breach of this Agreement by such Clients or Users; (iii) it will not attempt to interfere with or disrupt the integrity or performance of the Kontent Room Platform or the data contained therein or attempt to gain unauthorized access to the Kontent Room Platform or its related systems or networks, and (iv) it will not directly or indirectly reverse engineer, prepare derivative works of reverse compile or disassemble the Kontent Room Platform or any portion thereof or permit any User or third party to do the same. Customer shall also be solely responsible for maintaining the security of any passwords and/or access codes assigned and shall immediately notify Kontent Room if Customer becomes aware of any loss or theft or unauthorized use of any of Customers passwords or user accounts. Kontent Room reserves the right, upon notice to Customer, to terminate any Users right to access the Kontent Room Platform if such User has violated any of the terms, conditions or restrictions contained in this Agreement.
(a) Payment. Customer will pay all applicable Fees (as set forth on the Order Form and any other Insertion Orders) and media costs associated with any Third Party Term according to the terms set forth under this Agreement. This includes any and all fees incurred by Customer, Customer’s Clients, Customer’s Users or Kontent Room when acting on the Customer’s behalf when engaged via Managed Services or Professional Services related to the use of the Kontent Room Platform. Payments may be made by ACH, check, wire transfer or other means expressly agreed to in writing by Kontent Room. All payments will be made in US Dollars.
(b) Late Payment. Customer agrees to pay a late charge of one and half percent (1.5%) per month (or part of a month, or the maximum lawful rate permitted by applicable law, whichever is higher), for all amounts not paid when due. Customer shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Kontent Room and any taxes or obligations imposed upon Kontent Room under federal, state and local wage laws. Customer will also reimburse Kontent Room for all costs and expenses Kontent Room incurs in collecting or seeking to collect any late payments (including court costs and reasonable attorneys’ fees).
(c) Payment Dispute. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Customer delivers a written statement to Kontent Room on or before three (3) days after invoice has been issued, describing in detail the basis of the dispute and the amount being withheld by Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid as and when required under this Agreement.
(a) Customer Ownership. Customer retains ownership of all right, title and interest in and to all Customer Content. During the term of this Agreement, Customer hereby grants to Kontent Room a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Customer Content solely as necessary to provide the Services to Customer. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Content. The accuracy of Customer Content shall be Customer’s sole responsibility.
(b) Kontent Room Ownership. Customer acknowledges and agrees that (i) as between Kontent Room and Customer, all right, title and interest in and to the Kontent Room Platform, the Services and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain with Kontent Room or its licensors, and Kontent Room in no way conveys any right or interest in the Kontent Room Platform or the Services other than a limited license to use them in accordance with the terms of this Agreement, and (ii) the Kontent Room Platform and the Services are works protected by copyright, trade secret, and other proprietary rights and laws. As between Customer and Kontent Room, Kontent Room will also maintain all data derived from use of the Kontent Room Platform and may use and disclose such data (i) to provide the Services and for internal media planning purposes, (ii) as aggregate Services statistics, which will not include personally identifiable information or identify Customer or its Clients, and (iii) if required by court order, law or governmental or regulatory agency (after giving reasonable notice to Customer, if permitted). Notwithstanding the foregoing, nothing herein shall prohibit Kontent Room from using anonymous aggregated data for purposes of system performance and tuning. The Kontent Room name, the Kontent Room logo, and the product names associated with the Services are trademarks of Kontent Room or third parties, and no right or license is granted to use them. Customer shall not remove any Kontent Room trademark or logo from the Services. Kontent Room retains ownership of all right, title and interest in and to all Kontent Room Content. During the term of this Agreement, Kontent Room grants to Customer a limited, worldwide, non-exclusive, royalty free right to use, display, transmit, and distribute the Kontent Room Content solely in connection with Customer’s permitted use of the Services.
(a) During the term of this Agreement, each party will regard any information provided to it by the other party to be confidential (“Confidential Information”). Confidential Information shall also include information, which to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, Client, outside consultant, or advisor (collectively “ Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event less than reasonable care be used. The parties expressly agree that the terms and pricing of this Agreement are the Confidential Information of Kontent Room. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
(b) Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
(a) Customer Indemnification. Subject to subsection (b) below, Customer will indemnify, defend, and hold Kontent Room harmless from and against any and all Losses resulting from any claim, suit, action, or proceeding brought by any third party against Kontent Room (i) alleging that any content or materials supplied by Customer or its Clients or any use thereof, infringes the intellectual property rights, proprietary or privacy rights of others, or has caused harm to a third party, (ii) arising out of Customer’s breach any of its representations, warranties or covenants made in this Agreement or (iii) that is attributable to or otherwise alleges any violation of any Applicable Law by Customer, including without limitation compliance with data privacy and data protection laws. Customer also agrees to indemnify, defend, and hold Kontent Room harmless from and against any and all Losses resulting from any Objectionable Content used or transmitted by Customer or any of its Users in violation of this Agreement.
(b) Indemnification Procedure. With respect to any third party claims or proceedings, the indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement provided that the indemnifying party will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
7. Representations and Warranties
(a) Kontent Room’s Representation and Warranties. Kontent Room represents and warrants that the Services will comply in all material respects with the description of the Services found in this Agreement, the current Documentation or SOW, as the case may be. The foregoing shall not be construed as a warranty that the Services will function without error or interruption. For any breach of the warranty set forth above, Customers sole and exclusive remedy, except for termination of this Agreement as described in Section 11, and Kontent Room entire liability shall be, for Kontent Room to use commercially reasonable efforts to correct the defect or error that caused the breach of warranty or, if Kontent Room is unable to correct the defect or error, then Kontent Room may terminate this Agreement and provide Customer with a pro-rated refund of any prepaid amounts.
The Client acknowledges and accepts it will include said code and tags on its properties (including, if requested in writing by Kontent Room or specified in the technical specifications, on its email newsletter and websites). Any data received by Kontent Room via said tags will be used for performing Kontent Room Services, enhancing Kontent Room Technology and/or providing and improving any other Kontent Room products or services which the Client may be interested in receiving from time to time. Kontent Room will collect and use such data in accordance with applicable laws and regulations, including but not limited laws governing privacy and data protection. The Client undertakes to include on its properties (i) appropriate notice and choice mechanisms that comply with relevant laws and regulations. When notices are legally required they should indicate prominently to users (i) that by continuing to browse on Client properties, they consent to cookie (or other tracking technologies) dropping for the purpose of serving targeted advertising; and (ii) allow users to learn more and object to Kontent Room’s Services. When applicable, the Client undertakes to disclose that data may be collected and or shared with Kontent Room for targeting purposes. Each banner will include a link that will provide information for users on how to “opt-out” from Kontent Room Services.
9. KONTENT ROOM’S DISCLAIMERS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, THE KONTENT ROOM PLATFORM AND ANY SERVICES PROVIDED BY KONTENT ROOM IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. KONTENT ROOM EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF KONTENT ROOM OR ITS SUPPLIERS.
10. LIMITATIONS OF LIABILITY
KONTENT ROOM SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR TO CUSTOMER’S CLIENTS OR USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CUSTOMER OR CUSTOMER’S CLIENTS ARE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION WILL BE CONSTRUED TO LIMIT A PARTYS OBLIGATION TO INDEMNIFY THE OTHER PARTY. UNDER NO CIRCUMSTANCES WILL KONTENT ROOM’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL DAMAGES AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO KONTENT ROOM UNDER THIS AGREEMENT DURING THE SIX MONTH PERIOD PRIOR TO THE DATE OF THE ACTION OR CLAIM FOR THE SERVICES.
11. Term and Termination
(a) Term. Subject to earlier termination as described herein, the term of this Agreement shall commence on the Effective Date as defined on the Order Form and shall continue in effect for an initial term as defined on the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods terms (each, a Renewal Term) unless either party elects not to renew the Agreement by providing written notice to the other party no fewer than 60 days prior to the expiration of the then current term.
(b) Termination. Notwithstanding the foregoing, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Kontent Room also reserves the right to immediately terminate this Agreement in the event that Customer violates Applicable Law in connection with its use of the Services or otherwise uses or transmits any Objectionable Content in violation of this Agreement. Termination of this Agreement pursuant to this Section 11 (b) shall be in addition to any other rights or remedies available to the terminating party at law and in equity. All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement (including, without limitation, Sections 5, 6, 9, and 10, and all payment obligations relating to the period prior to termination.
(c) Suspension. Kontent Room also reserves the right, in its good faith reasonable discretion, to suspend or otherwise pause any advertising campaign being run through the Services for material non-compliance with supplier terms or in the event that Customer materially breaches any of the terms and conditions of this Agreement or any Third Party Terms, including, without limitation, any failure by customer to make payments in a timely fashion in accordance with Section 4. If an advertising campaign is paused, Kontent Room will notify the Customer.
EXHIBIT A — THIRD PARTY TERMS
Other Third Party Services
Customer may choose to use other third party services in connection with its use of the Platform Services (“TPS”). Examples of TPS include viewability tracking, consumer research, semantic analysis, etc.). Kontent Room will provide Customer final pricing, tracking, and monthly billing for the use of TPS. Customer will be liable for the additional cost of the TPS whether it is purchased through Kontent Room or directly by the Customer.
Customer agrees to be bound by all terms and conditions applicable to the TPS and Customer releases Kontent Room from all liability with respect to the use of TPS. Kontent Room makes no representations or warranties concerning the use of TPS and disclaims all warranties relating thereto including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability or fitness for a particular purpose.
[as required in a Professional Services SOW]