This is a License Agreement for the use of Data and Services (“Agreement”) between you (“Company”) and iSpot.tv, Inc. (“iSpot”). Under this Agreement, iSpot authorizes Company to receive from iSpot’s authorized partner, Neustar Information Services, Inc. (“Neustar”), the Data and Services (collectively the “iSpot Services”) as part of the Neustar services. By using the iSpot Services, Company agrees to be bound by the terms of this Agreement.
1. ISPOT SERVICE
1.1 The iSpot Service. In consideration for fees paid to Neustar, iSpot will provide the iSpot Services to Company.
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 which 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 the one advertising brand plus any three (3) competitors. Each Advertising Brand, as defined in the iSpot platform, requires a separate License Agreement.
b. iSpot Conversion Analytics. iSpot’s Conversion Analytics suite of services combines iSpot granular device level ad exposure data (“Ad Data”) with Company’s Data. As part of this Agreement, Neustar, an Authorized Data Matching Partner of iSpot, will combine Ad Data with Company Data and generate the aggregate analytics.
c. iSpot Dashboard. The iSpot Dashboard is an online portal located at http://analytics.ispot.tv which provides access to Media Measurement.
d. Licensed User Seats. The iSpot Dashboard will be accessible to 10 users, each of which must be an employee or contractor of Company. Company ma y provision user seats to its advertising agency, including its agency of record and its media and/or creative agencies, provided such agency users accessing the iSpot Service agree to be bound by the terms of this Agreement.
e. 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.
f. 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.
g. Monitored Networks. The list of currently monitored networks is available at https://www.ispot.tv/#networks.
h. Company Data. Company Data is comprised of data that is owned by Company and may include, but is not limited to, web site visit, app install and session, customer, and sales and other related data. Company Data does not include any information that is already tracked by or available within the iSpot Service, including ad creatives and media airing schedules. Company shall provide all Company Data directly to Neustar, and Company agrees it will not send or make any Personally Identifiable Information (PII) available to iSpot.
i. Hosting and Delivery. iSpot will host the iSpot Service on its own, on Neustar’s or third party servers as determined solely by iSpot. Company may keep local copies of the iSpot’s Media Measurement or related aggregate data on its own computers and servers during the term of this Agreement.
j. iSpot Support. iSpot will provide Company with initial dashboard training as well as assign Company an Account Manager for ongoing support. Any Neustar services leveraging the iSpot Analytics Plug-In shall be supported directly by Neustar.
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 in the Neustar Customer Agreement:
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 personally identifiable information.
d. Company may not access the granular device level ad exposure data directly via Neustar or in any other manner.
e. 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.
f. 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.
g. Company may not use the iSpot Service or iSpot Data to build or contribute to its own or any other third-party TV monitoring or analytics service.
h. The Company may not use the iSpot Service or iSpot Data to cause, control, encourage, induce, facilitate, promote or advertise activities, products or services that are illegal, intended to injure any person, defamatory or discriminatory.
i. 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.
j. Unless otherwise authorized, Company will not use the iSpot Data as an endorsement of any party or service.
k. Company may not transmit any iSpot Data outside the United States.
l. Company shall comply with applicable laws, regulatory requirements and industry standard information security and privacy practices that are applicable to the use or processing of the iSpot Data in accordance with the applicable iSpot Services (together, the “Data Protection Laws”) and shall not take, or fail to take, any action that would put iSpot in violation of such Data Protection Laws.
m. Any other use not explicitly granted under this Agreement.
3. TERMS
3.1 Fees. All Fees for the iSpot Service shall be paid to Neustar and Company agrees to pay its invoice per the terms of Company’s separate agreement with Neustar (the “Neustar Customer Agreement”).
3.1 Termination. iSpot may terminate this Agreement effective immediately upon notice of a material breach of any obligation hereunder, if such material breach or failure is not cured within thirty (30) days following the date iSpot gives Company notice setting forth in reasonable detail the elements of such breach (“Breach Notice”). This Agreement shall automatically terminate upon expiration of the iSpot Services per the Neustar Customer Agreement.
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 Neustar 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) all non-public information of a party and its affiliates, including information relating to the Company and the iSpot Service and information pertaining to such party’s business strategy, activities and operations (whether as then being or as proposed to be conducted), reports, ideas, concepts, know-how, techniques, technology, designs, specifications, drawings, diagrams, data, code, marketing plans, strategies, customer lists, suppliers, sources of materials, financial information, pricing information, business relationships, employees, trade secrets, and other technical or business information and any information, data or reports prepared or compiled under this Agreement and (ii) the terms of this Agreement. Confidential Information will not be deemed to 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 disclosing 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 disclosing party without the benefit of the other party’s Confidential Information, as shown by valid records.
4.2 Restrictions. During the term of this Agreement and for three years thereafter, each party agrees (a) 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, and (b) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
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 the sake of 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 attorneys 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 FOR THE ISPOT SERVICES AND DATA LICENSED 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 THE GREATER OF (A) TWICE THE AMOUNT PAID BY COMPANY FOR THE ISPOT SERVICES AND DATA LICENSED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000) .
7. GENERAL
7.1 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.
7.2 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.
7.3 Notices. Any notice, approval, consent, request, authorization, direction or other communication under this Agreement will be given in writing. If to Company, then such notice will be sent to the company contact listed on the Neustar Customer Agreement. If to iSpot:
iSpot.tv, Inc. | Attn: Legal and Business Affairs
15831 NE 8th Street, Suite 100, Bellevue, WA 98008
Telephone: (855) ISPOT-TV
7.4 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.
7.5 Construction. This Agreement will be fairly interpreted and construed in accordance with its terms. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. By using the iSpot Services and Data, Company agrees to be bound to these iSpot Terms of Service.
7.6 Remedies. To 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.
7.7 Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.
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 earlier termination of this Agreement.