This is a License Agreement for the use of iSpot Data and iSpot Services (“License”) between you (“Company”) and iSpot.tv, Inc. (“iSpot”). By using the iSpot Service Packages and Add-Ons selected on the Emerging Advertiser Order Form (“Order Form”), Company agrees to be bound by the terms of this License.
1. ISPOT SERVICE
1.1 The iSpot Service. The Emerging Advertiser Service Packages are only available to advertisers who are new TV advertisers and spend less than $3,000,000 on media for National TV ad campaigns (i.e., linear TV) as measured by iSpot. iSpot requires Company to enter into the iSpot Services Agreement when its media spend increases to $3,000,000 if Company wishes to maintain uninterrupted access to iSpot Services and iSpot Data after the Service Term ends. Company may transition to the iSpot Services Agreement at any time after the Service Term ends.
In consideration for payment of the License Fee, iSpot will provide Company with the iSpot Services selected on the Order Form:
a. iSpot Media Measurement. The iSpot Media Measurement includes the cataloging and tracking of creatives, airings, spend and related data for national TV advertising activity on the Monitored Networks and is accessible via the iSpot Dashboard. Media Measurement also includes Impression Measurement. Impression Measurement verifies and measures delivery of advertising across national, local and VOD/OTT inventories and extrapolates the impressions from the iSpot TV panel to US Census. iSpot Media Measurement is provided as a syndicated reporting service accessible only for one advertised brand (the “Licensed Brand”) plus the competitor brands (“Competitor Brands”) indicated on the Order Form. Additional Licensed Brands, if desired, require a separate Order Form.
b. Attention Analytics Attention Analytics measures consumers interrupting of an ad play in the form of interruption rates and attention index. Interruption rates are indexed across creatives and media placements, and benchmarked against brand and industry norms. Attention Analytics is provided as a syndicated reporting service accessible only for the Licensed Brands and Competitor Brands indicated on the Order Form.
c. TV Conversions to Web consists of connecting Company Data with Company’s TV ad impressions. Conversion Analytics includes analytics, accessible via the iSpot Dashboard, for measuring lift by network and conversation rates by: (a) creatives, (b) networks, (c) program genres, (d) programs, (e) day parts and (f) optimal frequency.
d. Unified Measurement consists of measuring impressions, incremental reach and conversions for Company’s streaming platform (OTT) addressable and other digital campaigns. The service includes the provisioning of an iSpot pixel with Company’s campaign. While iSpot has built-in integrations with most streaming platforms, it is the Company’s responsibility to ensure that each streaming or digital platform provisions the pixel provided by iSpot with the campaign. The Unified Measurement reporting is available in the iSpot Dashboard. The conversions portion of the Unified Measurement reporting requires a TV Conversions license. Certain DSPs may charge additional fees for measurement integrations with their platforms, and such fees, if any, are the responsibility of Company.
e. iSpot Dashboard. The iSpot Dashboard is an online portal located at http://analytics.ispot.tv which provides access to Media Measurement, Attention Analytics, TV Conversions and other services described herein.
f. Licensed User Seats. The iSpot Dashboard will be accessible to 5 Licensed Users, each of which must be an employee or contractor of Company.
g. iSpot Data. The iSpot Data is comprised of any and all data, metrics and analytics made available to Company via the iSpot Service, excluding any underlying Company Data. Creatives, Airings & Spend, Impression Measurement and Attention Analytics include 1 Year Historical Data (to report TV Ad exposures up to 1 year ago).
h. iSpot Digital Assets . The iSpot Digital Assets are individual video files, in either MP4 or webm formats, that represent TV ads tracked by the iSpot Service, and which can be downloaded from the iSpot Dashboard or API.
i. Monitored Networks. The list of currently monitored networks is available at http://www.ispot.tv/#networks.
j. Company Data. Company Data is collected via an iSpot tracking pixel embedded on the Company’s web sites and/or apps. Company Data means data collected directly from Company and data owned by Company. Company Data includes customer activity and customer information like web site visits, app installs, session data, and online sales. Company controls the Company Data available to iSpot by deploying the iSpot pixel according to Company’s specifications. Company Data is not data and information that iSpot collects from monitored networks and its data providers. Company Data does not include the data and information iSpot makes available to Company through the iSpot Dashboard, its proprietary APIs, its catalog of ad creatives, and the iSpot Services selected on an Order Form. Company warrants to iSpot that it holds the necessary rights, licenses, consents, waivers and permissions to collect and deliver such data. Company provides iSpot with a limited, revocable, non-exclusive, non-sublicensable license to the Company Data to match and combine it with iSpot Data and for the purpose of generating analytics and other services described herein to Company. No other uses are permitted. Notwithstanding the above, iSpot may use the conversion rates and other metrics derived from the use of Company Data in an anonymized fashion to provide benchmarks to Company and third parties.
k. Hosting and Delivery. iSpot will host the iSpot Service on its own or third party servers as determined solely by iSpot. Company may keep local copies of the iSpot Data on its own computers and servers during the term of this Agreement.
2. PERMITTED USES AND RESTRICTIONS
2.1 Permitted Use. Subject to the terms and conditions of this Agreement, iSpot grants Company a limited, revocable, non-exclusive, non-sublicensable license to the iSpot Services as described on the Order Form to:
a. View and download the iSpot Data for the purpose of tracking, measuring and analyzing the Company’s own and its competitor’s advertising activities.
b. Combine the iSpot Data with Company Data for the purpose of generating aggregate analytics on the effectiveness of its marketing activities.
c. Make creative optimization and media buying decisions for Company ad campaigns.
d. Share any work product created following the use of the iSpot Data within Company’s own organization.
2.2 Restrictions.
a. Each Licensed User Seat may only be used by one individual accessing the data from no more than three personally or Company owned devices.
b. Company may only use the iSpot Service for internal research purposes and in accordance with the terms of this Agreement. Company may not share any iSpot Data outside of Company’s organization.
c. Company may not re-identify or de-anonymize the iSpot Data or otherwise associate the iSpot Data with personal information.
d. Company may not resell, redistribute, sublicense, copy, transfer, lease, or authorize the resale or redistribution, sublicensing, copying, transferring or leasing of the iSpot Service, the iSpot Data or any element thereof to any third party.
e. Company may not modify, create derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or underlying trade secrets of the iSpot Service or any iSpot Data.
f. Company may not use the iSpot Service or iSpot Data to build or contribute to any other third-party TV monitoring or analytics service.
g. Company may not access (or attempt to access) the iSpot Service by any means other than as provided for in this Agreement, unless otherwise authorized by iSpot in writing.
h. Unless otherwise authorized, Company will not use the iSpot Data as an endorsement of any party or service.
i. Company may not transmit any iSpot Data outside the United States.
j. Company shall comply with all laws, regulatory requirements and industry standard information security and privacy practices that are applicable to Company’s use or processing of the iSpot Data and iSpot Services (together, the “Data Protection Laws”). Company shall not take, or fail to take, any action that would put iSpot in violation of such Data Protection Laws.
k. Any other use not explicitly granted under this Agreement.
3. TERMINATION OR EXPIRATION
3.1 Termination. Company and iSpot will each have the right to terminate this Agreement effective immediately upon notice of a material breach of any obligation hereunder by the other party, if such material breach or failure is not cured within thirty (30) days following the date the non-breaching party gives the other party notice setting forth in reasonable detail the elements of such breach (“Breach Notice”). In addition, either party will have the right to terminate this Agreement when the Service Term expires upon written notice prior to the end of the Service Term.
3.2 Events Upon Termination or Expiration. Upon the expiration or termination of this Agreement for any reason, Company will promptly cease all use of the iSpot Service. Each Party shall delete and destroy the other Party’s Confidential and Non-confidential Information, except as otherwise provided. All payments that have accrued as of the date of termination or expiration, will be payable to iSpot in full on such date; and all rights herein granted will revert to the granting party.
4. CONFIDENTIALITY & RETAINED RIGHTS
4.1 Definition. For the purposes of this Agreement, “Confidential Information” means (i) any document a disclosing party marks “Confidential”; (ii) any information a disclosing party verbally designates as “Confidential” at the time of disclosure; and (iii) any other nonpublic, sensitive information a receiving party should reasonably consider a trade secret or otherwise confidential. Confidential Information does not include any information which (a) is publicly known at the time of the disclosure; (b) becomes publicly known other than by breach of this Agreement; (c) becomes known to the receiving party, without restriction, from a source free of any obligation of confidentiality; or (d) is independently developed by or already in the possession of the receiving party without the benefit of the other party’s Confidential Information.
4.2 Restrictions. During the term of this Agreement and for three years thereafter, each party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement. Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care.
4.3 Retained Rights. As between the parties, the iSpot Services and iSpot Data, and any other information, technology, hardware, software, systems and materials provided or used by iSpot hereunder in connection with the iSpot Services, and all intellectual property rights therein are, and will remain, the property of iSpot. All rights in and to the iSpot Service and iSpot Data not expressly granted to Company in this Agreement are reserved and retained by iSpot and its licensors without restriction. For clarity, the tangible and personal property rights (as distinguished from the intellectual property rights) in and to the iSpot Digital Assets produced by iSpot at its expense shall be owned by iSpot and be deemed iSpot Data hereunder. As between the parties, the Company Data provided to iSpot hereunder and all intellectual property rights therein are, and will remain, the property of Company. All rights in and to the Company Data not expressly granted to iSpot in this Agreement are reserved and retained by Company and its licensors without restriction.
5. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ISPOT HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE ISPOT SERVICE OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. LIABILITY AND INDEMNITY.
6.1 iSpot agrees to defend, indemnify and hold harmless the Company, its affiliates, and their respective directors, officers, shareholders, employees, contractors and agents, from and against any liabilities, losses, claims, suits, damages, costs or expenses (including reasonable attorney’s fees and expenses (each, a “Claim”) arising out of or relating to any third party claim that Company’s use of the iSpot Data as permitted by this Agreement violates any right of privacy or publicity, or infringes or misappropriates any patent, copyright, trademark, trade secret or other intellectual property right.
6.2 Company agrees to defend, indemnify and hold harmless iSpot, its affiliates, data partners and its and their respective directors, officers, shareholders, employees, contractors and agents from and against any Claim brought by any third party arising out of or relating to Company’s actual or alleged breach of this Agreement.
6.3 NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
6.4 EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 6.1 OR 6.2. NEITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY COMPANY TO ISPOT UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 6.1 OR 6.2, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED TWICE THE AMOUNT PAID BY COMPANY TO ISPOT UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
7. GENERAL
7.1 Tax. Company is responsible for all taxes payable, if any. iSpot may apply sales tax to your invoice if sales tax is required by local tax authority as determined by the address provided on the Order Form.
7.2 No Agency or Joint Venture. The parties agree and acknowledge that the relationship of the parties is in the nature of independent contractors. This Agreement will not be deemed to create a partnership or joint venture, and neither party is the other’s agent, partner, employee, or representative.
7.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
7.4 Notices. Any notice, approval, consent, request, authorization, direction or other communication under this Agreement will be given in writing. iSpot may send notices pursuant to this Agreement by email to the Primary Contact shown on the Order Form, and such notices will be deemed received when Company confirms receipt. Company may send notices pursuant to this Agreement to legal@ispot.tv and such notices will be deemed received when iSpot confirms receipt.
Notices may also be sent to:
15831 NE 8th Street, Suite 100,
Bellevue, WA 98008
7.5 Entire Agreement, Modification, Waiver. This Agreement, including the exhibits hereto, contains the entire understanding of the parties hereto and supersedes all previous agreements or arrangements between the parties hereto relating to the subject matter hereof. This Agreement cannot be changed or modified except by an instrument signed by authorized signatories of the parties. A waiver by either party of any term or condition of this Agreement in any instance will not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. Should any provision of this Agreement be adjudicated by a court of competent jurisdiction as void, invalid or inoperative, such decision will not affect any other provision hereof, and the remainder of this Agreement will be effective as though such void, invalid or inoperative provision had not been contained herein.
7.6 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
7.7 Remedies. TTo the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the parties at law or equity.
7.8 Governing Law. This Agreement will be governed and interpreted in accordance with the laws of the State of Washington without regard to principles of conflict of laws.
7.9 Survival. The provisions of 2.2 (“Restrictions”), 3.2 (“Events upon Termination”), 4 (“Confidentiality & Retained Rights”), 5 (“Disclaimer of Warranties”), 6 (“Liability and Indemnity”), and 7 (“General’) will survive the expiration or termination of this Agreement.
7.10 Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder without iSpot’s express written consent.