In consideration of the payment obligations and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:  

1. Ownership; Restrictions on Use; etc.

1.1      Company acknowledges and agrees that Adbrain and its licensors and suppliers own all intellectual property and other rights in the Adbrain Solutions.  Further, aspects of the Adbrain Solutions provided are or may be the subject to trade secrets protection or applications for patent protection in one or more jurisdictions and that Company’s (or its authorized third party’s) permitted use of the Adbrain Solutions is not intended to be a disclosure or publication of any such trade secrets and/or other intellectual property that may be embedded therein.  Except as expressly stated herein, nothing herein grants to Company any ownership, licensed or other rights in, to or under any such Intellectual Property Rights, in respect of the Adbrain Solutions (including any right to use any of Adbrain’s names, marks, service marks in any manner, for any purpose without Adbrain’s express prior written consent).

1.2 Company will not: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Adbrain Solutions in any form or media or by any means; attempt to reverse compile, disassemble or reverse engineer any part of the Adbrain Solutions or underlying code or systems or creative derivative works based thereon; (b) access all or any part of the Adbrain Solutions in order to build or assist a third party, including Company’s direct clients, to build a product or service which competes with the Adbrain Solutions; (c) except as expressly permitted under a relevant Order Form, sell, license, re-license or sublicense, lease, rent, loan, transfer, assign, display, disclose, or otherwise commercially exploit, or otherwise distribute or make the Adbrain Solutions available to any third party; or (d) use the Adbrain Solution in the operation of a service bureau.

1.3      Adbrain will not sublicense, license or sell Company’s Input Data in unmodified format to any third party separate from the Adbrain Solutions.  Any and all Adbrain Output derived from using the Input Data may be used without restriction in connection with improvement, performance and provision of Adbrain’s products and services without further obligation to Company, and no expiration or termination of this Order Form shall affect Adbrain’s right to use any such Adbrain Output in perpetuity.

1.4      Adbrain owns and will own all Adbrain Output and other data elements of or derivations based on any uses by Adbrain including any and all post-processed versions of such Input Data, whether processed by itself and/or aggregated with other data and the Adbrain Solutions and data stores produced thereby, all of which Adbrain will be free to use or sell as it sees fit without restriction.  Adbrain welcomes requests, instructions or other suggestions related to the Adbrain Solution, but in making the same, Company acknowledges and agrees that such suggestions will become the property of Adbrain, and Adbrain has no obligation to compensate Company or any other third party for such suggestions.

1.5      Neither party will publicly or privately disparage the other party or its services or business.  The parties agree that Adbrain may include the Company’s name and logo on its website and in its promotional materials as a customer of Adbrain.  Nothing in these General Terms and Conditions or any Order Form shall prevent either party from making any statement about its business relationship with the other within the scope of these General Terms and Conditions and the relevant Order Form(s) or otherwise making public or private statements in the normal course of its respective businesses that do not disclose the specific terms of these General Terms and Conditions or Order Form(s).  Further Adbrain is expressly authorized to use any and all data that has been collected or processed (including regarding Company's use of the Adbrain Solutions) in case studies, general benchmarking data and industry reports for distribution to its clients and others, provided that the Company shall not be identified (including by aggregating, anonymizing and/or de-identifying any data used and in how any findings are presented) without Company's express written approval.

2. Confidentiality 

2.1  The term “Confidential Information” means either party’s information which has been labeled or indicated as being confidential.  The terms and conditions of each Order Form (including any pricing terms) constitute Confidential Information of Adbrain.

2.2 Neither party shall disclose Confidential Information of the other party to any third party, provided, however, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement to the extent permitted by law, (b) on a confidential basis to legal advisors; or (c) as may be necessary to employees, consultants, or other direct or indirect technology service providers (such as hosting or cloud providers or other third party providers) as may be reasonably required to perform or exercise its rights and obligations hereunder (and then only if the same is subject to confidentiality restrictions at least as protective as those set forth herein).

2.3  Notwithstanding anything to the contrary contained herein, Adbrain is and will not be liable for confidentiality obligations under this Section or otherwise hereunder in respect of Input Data if such Input Data is anonymized, pseudo-anonymized, encrypted or similarly processed or aggregated with the data of other parties. Any data elements assigned by Adbrain to a device or use shall constitute Confidential Information of Adbrain.

3. Representations and Warranties; etc. 

3.1 Each party represents, warrants and covenants that it has the corporate right and authority to enter into the Order Form(s), and that by agreeing to and performing its obligations hereunder, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.

3.2 Company represents, warrants and covenants to the terms and conditions set forth in the Data and Privacy Acknowledgement located at http://www.adbrain.com/legals/dpa the terms of which are incorporated by reference in these General Terms and Conditions.

3.3 Each party (the "indemnifying party") will defend and indemnify the other party and its employees, officers, directors, agents, representatives, and corporate affiliates (collectively, the "indemnified party") for any third party claims and any liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees and disbursements but not including (to the extent recognised under applicable law) indirect, special, incidental, punitive, loss of profit or consequential loss or damages) resulting from or arising out of such third party claims, and any settlements approved by the indemnifying party (“Claims”), for, arising out of, or resulting from any of the following:

  1. in the case of Company as indemnifying party, (x) the conduct of Company’s business, (y) any violation or breach by Company of the Order Form, these General Terms and Conditions, Data and Privacy Acknowledgement or any applicable Laws or (z) any conflict, violation or infringement of any intellectual property rights, privacy, publicity or other rights of any person or entity by any of the Input Data or the conduct of Company’s business; and
  2. in the case of Adbrain as indemnifying party, the infringement by the Adbrain Solutions of any intellectual property rights of a third party (other than the intellectual property rights of any indemnified party) subject to Company’s indemnification obligation in clause (a) above.

Notwithstanding anything to the contrary herein, Adbrain will have no obligation to Company or any other indemnified party of Company under this Section or otherwise with respect to any Claims based upon (i) Company’s systems or infrastructure even if caused by the technical integration, (ii) any unauthorized modification of the integration after completion thereof, (iii) Company’s business or operations, (iv) Company’s non-compliance with its obligations hereunder, (v) the combination of the Adbrain Solutions with either the Input Data and/or other hardware, software, processes or materials, provided by, or access to which was facilitated by, Company, or (vi) Company's use of the Adbrain Solutions after notice of the alleged or actual infringement from Adbrain or any appropriate authority.


3.4 OTHER THAN AS EXPRESSLY PROVIDED HEREIN, ANY OF THE ADBRAIN SOLUTIONS OR ANY OTHER PRODUCT OR SERVICE OF ADBRAIN IS HEREBY PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMANCE WITH DESCRIPTION, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, QUIET ENJOYMENT, AND NON-INFRINGEMENT.

3.5 WITHOUT LIMITING THE FOREGOING, ADBRAIN DOES NOT WARRANT OR REPRESENT THAT ANY TECHNICAL INTEGRATION WITH THE ADBRAIN SOLUTIONS OR ANY OTHER PRODUCT, SERVICE OR SOFTWARE OF ADBRAIN WILL BE CONTINUOUS, SECURE, RELIABLE, UNINTERRUPTED OR ERROR-FREE, OR THAT ITS SERVERS AND SOFTWARE ARE FREE OF VIRUSES (AS DEFINED BELOW) OR OTHER HARMFUL COMPONENTS, OR THAT ITS SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR MATERIALS BY THIRD PARTIES.  IN ADDITION TO THE DISCLAIMERS HEREIN, ADBRAIN HEREBY DISCLAIMS ANY DUTIES OF AN INSURER, BAILEE OR WAREHOUSEMAN, AND COMPANY HEREBY WAIVES ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION, EXPORTATION, IMPORTATION OR SHIPMENT OF ANY INPUT DATA OR OTHER DATA OR THE ADBRAIN SOLUTIONS, IN ANY FORMAT OR MEDIUM, BY ADBRAIN OR ITS AFFILIATES OR ANY OF ITS OR THEIR CONTRACTORS OR AGENTS.

4. Limitation on Liability

4.1 NEITHER PARTY NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY INCLUDING ANY INDEMNIFIED PARTY OR UNDER ANY INDEMNIFICATION OBLIGATION OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS (TO THE EXTENT RECOGNISED UNDER APPLICABLE LAW) OR CORRUPTION OF DATA OR INFORMATION, OR CONSEQUENTIAL LOSS OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, ANY OF THE ADBRAIN SOLUTIONS OR ANY OTHER DATA, PRODUCT OR SERVICE OF ADBRAIN, OR ANALYSES OR OTHER RESULTS PROVIDED BY ADBRAIN, WHETHER BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

4.2 If Company reasonably determines that performance of any Adbrain Solution does not meet Adbrain’s obligations hereunder, then, unless Adbrain disputes Company’s claim in good faith, Adbrain will, at its option, either re-perform the Adbrain Solution in question or issue Company a credit for such portion of Company Fees actually paid to Adbrain and is fairly attributable to the nonconforming service.  Company must notify Adbrain in writing within thirty (30) days of receiving any nonconforming service.  Failure to so notify Adbrain on a timely basis shall mean that Company accepts such service "AS IS, WHERE IS", and Adbrain shall have no liability whatsoever with respect to such service.  This re-performance or credit constitutes Company’s sole remedy and Adbrain’s maximum liability for any breach hereof by Adbrain.

4.3 IF, NOTWITHSTANDING SECTION 4.2, LIABILITY IS IMPOSED ON ADBRAIN, THEN ADBRAIN’S TOTAL LIABILITY TO COMPANY (INCLUDING AS TO INDEMNIFICATION OBLIGATIONS) FOR ANY CLAIM, CAUSE, LIABILITIES, DAMAGES, COSTS OR LOSSES WHATSOEVER WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT PAID BY COMPANY FOR THE ADBRAIN SOLUTIONS GIVING RISE TO SUCH ALLEGED CLAIM OR ACTION WITHIN THE LAST THREE MONTHS HEREUNDER PRIOR TO THE DATE OF SUCH ACT OR EVENT; OR (B) $10,000. ADBRAIN’S LICENSORS AND SUPPLIERS SHALL HAVE NO LIABILITY TO COMPANY FOR ANY REASON.

5. Term; Termination

5.1 Each Order Form shall be automatically renewed for the successive Renewal Periods as set forth in such Order Form.

5.2 Without affecting any of its rights or remedies, either party may terminate any Order Form immediately by giving the other party written notice of immediate termination if:

  1. the other party commits a material breach of any term of such Order Form and/or any other Order Form(s) and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
  2. the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law, or if a receiver is appointed for the other party or its business, files a petition for bankruptcy or is adjudicated bankrupt, or if a petition on bankruptcy or winding up petition is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; or
  3. in the case of Adbrain, Company (or Company’s third party provider) breaches the provisions and obligations in Section 1 of these General Terms and Conditions in respect of any Adbrain Solution under any Order Form.

5.3 Adbrain may suspend access or use of the Adbrain Solutions if: (a) Adbrain determines in its sole discretion that such access or use may pose a security risk, adversely impact any systems or data, or subject Adbrain or other party to liability or prosecution, action or other proceeding by a governmental authority; (b) the Company’s credit is or becomes impaired in Adbrain’s sole determination; or (c) without prejudice to any other rights and remedies, Adbrain has not received payment within forty-five days from the date of the invoice.

5.4 Upon any termination of one or more Order Form or any Adbrain Solutions provided thereunder in its entirety for any reason, Company’s access to such of the relevant Adbrain Solution(s) or, if all Order Form(s) is/are terminated in its/their entirety, all Adbrain Solutions shall immediately terminate.  Adbrain will have no obligation to delete or destroy any archives of Input Data collected or provided under such terminated Order Form(s), provided that such archives of Input Data may only be used for archival, litigation and/or compliance with law purposes.  All outstanding invoices shall immediately become due and payable.

5.5 Any rights or remedies of either party arising out of a breach or violation by the other party of any Order Form(s) will survive any expiration or termination thereof. Any and all provisions which by their terms are reasonably expected to survive any expiration or termination of any Order Form(s) shall survive any expiration or termination hereof.

6. Miscellaneous

6.1 The headings and captions are for the purposes of convenience and reference only and are not to be construed as a part hereof.  The use of the words “include,” “includes,” and “including” followed by one or more examples is intended to be illustrative and is not a limitation on the scope of the description or term for which the examples are provided.  The term “Laws” means (a) any and all applicable European Union, United Kingdom, United States and other national, federal, state or local laws, (b) guidance, ordinances, and self-regulatory principles, including any guidance or regulations promulgated by the Digital Advertising Alliance (or “DAA”) and the European Digital Advertising Alliance (EDAA) as geographically applicable, (c) any and all privacy regulations of any applicable jurisdiction(s), in all cases, including the UK Data Protection Act 1998 and any other applicable data protection and other privacy regulations of the United States, United Kingdom or other country, data protection legislation, directives and/or orders, decisions, or holdings of any tribunal, agency or other governmental authority that are likely to be enacted, adopted or upheld, and (d) the United States Children’s Online Privacy Protection Act (or COPPA) and/or any similar applicable laws, regulations and/or rules.

6.2 Anti-Bribery.  Each party represents and warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees, agents or affiliates owned, controlled or under common control of the other party in connection herewith.  Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party, in the case of Adbrain, at privacy@adbrain.com.

6.3 Assignment.  Company shall not be entitled (without the consent of Adbrain which shall not be unreasonably withheld) to assign, novate or otherwise transfer any Order Form (or any of its rights or obligations hereunder), in whole or in part, to any of its Affiliates and/or a purchaser of all or substantially all of the relevant business of Company.  For the avoidance of doubt, it shall not be unreasonable for Adbrain to withhold consent where Company seeks to assign, novate or otherwise transfer any of its rights or obligations hereunder, in whole or in part, to a competitor of Adbrain.  Adbrain may freely assign any Order Form(s) together with the business or assets required to perform such Order Form(s), whether via corporate reorganization, by merger or otherwise as a matter of law, stock purchase of the Company, or sale of the Company’s relevant assets and business.

6.4 Independent Contractor.  Nothing herein is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.  The parties hereto are independent contractors and shall not be eligible for any benefits that the other party offers to its employees.   There are no third-party beneficiaries hereunder .  Nothing herein shall prevent Adbrain from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided hereunder.

6.5 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via email (subject to actual non-automatic confirmation of receipt), or by a recognized express delivery courier or by certified or registered mail, prepaid and return receipt requested, addressed to the other party at its email or physical address specified on the relevant Order Form(s), or at such other address designated in a subsequent notice.  All notices shall be effective upon receipt.

6.6 Entire Agreement.  These General Terms and Conditions or any applicable Order Form (s) constitute the entire agreement between the parties and supersede and extinguish all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its/their subject matter.  Neither party shall be in breach of these General Terms and Conditions or any applicable Order Form nor liable for delay in performing, or failure to perform, any of its obligations under these General Terms and Conditions or any applicable Order Form if such delay or failure results from events, circumstances or causes beyond its reasonable control.  Each party agrees that it shall have no remedies in respect of any statement, representation or warranty (whether made innocently or negligently) that is not set out in these General Terms and Conditions or any applicable Order Form.  Failure or delay in exercising any right or remedy under these General Terms and Conditions or any applicable Order Form shall not constitute a waiver or such (or any other) right or remedy. 

The invalidity, illegality or unenforceability of any term of this Agreement shall not affect the continuation in force of the remainder of the Agreement.