iSpot.tv Services Agreement

1. ISPOT SERVICES AND DATA
   1. The iSpot Services. Licensed Services means the iSpot Services and iSpot Data selected on the Order Form. In consideration for payment of the License Fee, iSpot will provide the following iSpot Licensed Services to Company if selected on the Order Form.
      1. 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 and iSpot API. Media Measurement may also include Impression Measurement, Media Market Reporting, Local Media Measurement, Unified Measurement, and Attention Analytics if selected on the Order Form. 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. Impression Measurement by Media Market further breaks out impressions volumes for each of the 210 US Media Markets. Local Media Measurement delivers airings data for 27 Media Markets in the iSpot Dashboard. iSpot Media Measurement is provided as a syndicated reporting service accessible only for the Industries indicated on the Order Form.
         1. Attention Analytics measures consumers interrupting of an ad play in the form of interruption rates and attention index. Interruption rates are indexed across creatives & 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.
         2. 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 and digital platforms, it is the Company’s responsibility to ensure that the pixel provided by iSpot is provisioned with the campaign. The Unified Measurement reporting is available in the iSpot Dashboard or can be further customized via Advanced Analytics. The conversions feature of the Unified Measurement reporting requires a Conversion Analytics license. Certain DSPs may charge additional fees for measurement integrations with their platforms, and such fees, if any, are the responsibility of Company.
      2. Business Outcomes. The iSpot Business Outcome Analytics suite may include Conversion Analytics, Segment Analytics, Advanced Analytics, iSpot Query System, and Integrated User Level Data (IULD), if selected on the Order Form.
         1. Conversion Analytics consists of connecting Company Data with Company’s TV ad impressions. Conversion Analytics includes analytics, accessible via the iSpot Dashboard and API, 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. Conversion Analytics license requires a license to Creatives, Airings, & Spend and Impression Measurement.
         2. Segment Analytics consists of media measurement and media planning analytics for a consumer segment pushed by Company to iSpot. The segments must be delivered to iSpot per iSpot specifications. Company is responsible for any third-party fees that may be incurred in the process of pushing segments to iSpot. Company may push as many segments as indicated on the Order Form and these same segments may be refreshed at an interval no more frequent than once per week.
         3. Advanced Analytics are customizable media measurement, attention, and conversion analytics for functionality beyond the standard set of iSpot services defined herein. Advanced Analytics reports may be included as indicated on Order Form or may be purchased as add-ons.
         4. iSpot Query System (iQS). iQS is a managed service including a secure cloud environment hosted by iSpot for exclusive access and use by Company. The environment includes dedicated servers, storage, database and the iQS Licensed Data hosted in the cloud and fully managed by iSpot. iSpot shall fully provision, manage, monitor, and support the iQS environment. The iQS managed service shall include the iQS Licensed Data indicated on the Order Form, which may include our granular device-level TV ad exposure (IULD), conversions data and additional data sets as indicated on the Order Form. iSpot shall load, match, and refresh the iQS License Data on regular intervals. The fees for the iQS Licensed Data are in addition to the iQS managed service fee.
         5. Integrated User Level Data (IULD). This section and all references to IULD only apply if Company selects IULD on the Order Form. The IULD comprises granular device level ad exposure data for the licensed Brands indicated on the Order Form. The IULD consists of user or device level data which combines iSpot data with data collected from our data partner VIZIO Services, LLC (“VIZIO”), and may include reference to Company’s own user IDs collected via iSpot tracking pixel and/or 3rd party IDs (i.e., LiveRamp) that have been mapped to iSpot TV IDs. The IULD will be delivered nightly to Company via a file uploaded to an AWS bucket set up by iSpot. The IULD may be included as part of Conversion Analytics. Company’s use of the IULD is governed by this Agreement and subject to the terms and conditions set forth in the data authorization agreement provided by VIZIO at www.inscape.tv/ispot (the “DAA”). By using the IULD, Company agrees to be bound to the DAA’s terms, which is incorporated herein by reference.
      3. Creative Assessment.
         1. Ace LIVE measures ad effectiveness based on viewer reaction to video ads, providing the advertising industry an unbiased resource to measure creative impact. Syndicated data is available for all nationally breaking TV ads in the Industries, Categories and Brands selected on the Order Form. The Ace LIVE Dashboard allows advertisers to: review creative effectiveness scores for the advertiser’s own ads as well as any Industries, Categories and Brands indicated on the Order Form; analyze data by demographics; access unedited, unfiltered voice-of-the-consumer verbatim comments for every ad; and generate top-line reports. Ace Emo 2.0 quantifies viewer verbatim responses to identify the emotional impact of video advertising. Derived via natural language processing and machine learning, Ace EMO 2.0 features 57 emotional responses that consumers have to commercials. Cultural Perception (CP) scores measure the positive and negative impact of purpose-driven advertising. Scores for Empower and Exploit are derived from our emotion measurement platform, which applies NLP and machine learning techniques to verbatim viewer comments. Custom Questions allow an advertiser to add their own questions to the standard, syndicated survey. Multiple types of questions are possible, including closed and open-ended options, all at the client’s discretion. Ace DIGITAL is a collection of digital first ads, scored with our media agnostic Ace LIVE survey. Clients can access a set of their own and competitive ads as well as digital only norms. The Ace LIVE database contains more than 120,000 video ads from over 189 industries and over 4,000 brands.
         2. Ace VIVA is the Spanish language service leveraging the same methodology and surveys used for the general market English language tests. Ace VIVA provides competitive context associated with other Hispanic-targeted creatives. Results are available within the Ace LIVE Dashboard. The Ace VIVA database contains more than 3,500 Spanish language ad results from many of the world’s leading brands and across many industries including Automotive, Financial Services, Insurance, Packaged Goods, Retail, Restaurants, and Telecom Services.
         3. Ace PRE uses the same survey as Ace LIVE or Ace VIVA to measure ad effectiveness before it goes in-market. Testing can include any format of finished or unfinished work in video form, including animatics, storyboards and rough cuts. Advertisers have the option to add Custom Questions to the survey to provide more robust targeting or inform creative decisions.
         4. Ace TARGET allows Company to customize sampling to measure performance among highly targeted audiences and gather tailored feedback. Clients define the target they would like as well as sample size.
         5. Ace SHORT is a comparative database of over 2,500 short form (<:11) video ads. Sample size (n=250) and survey design are ideal for iterative testing and quick turn decision making.
         6. Ace Custom Analysis is a predefined report completed by the Customer Success team using the Ace Metrix database beyond the standard measures.
      4. Dashboard. The iSpot Dashboard is an online portal located at http://analytics.ispot.tv which provides access to Media Measurement, Attention Analytics, Conversion Analytics and other services described herein. The Ace Dashboard is an online portal located at live.acemetrix.com/html which provides access to Ace LIVE, Ace VIVA, Ace PRE and other Creative Assessment Services selected on the Order Form.
      5. Licensed User Seats. The iSpot Dashboard will be accessible to the number of Licensed Users designated on the Order Form, each of which must be an employee or contractor of Company. Company may provision user seats to its advertising agency, including its agency of record and its media and/or creative agencies (collectively “Agency”), provided such Agency Users accessing the iSpot Services agree to be bound by the terms of this Agreement.
      6. iSpot APIs. The iSpot APIs are a set of Application Programming Interfaces (APIs) through which Company can retrieve certain sets of data in an automated way. The iSpot APIs may only be utilized or accessed by employees or contractors of Company.
      7. iSpot Digital Assets. The iSpot Digital Assets are individual video files, in either MP4 or webm formats, which represent TV ads tracked by the iSpot Services, and which can be downloaded from the iSpot Dashboard or API.
      8. Monitored Networks. iSpot monitors and reports on commercial airings in real-time on the top broadcast and cable networks. iSpot processes satellite and cable TV feeds from data center locations in the United States. The list of currently monitored networks is available at https://www.ispot.tv/#networks.
      9. Hosting and Delivery. iSpot will host the iSpot Licensed Services 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.
      10. iSpot Customer Success. iSpot will provide Company with a Customer Success resource for ongoing consultation, training, and support. Consultation may include how to best utilize the iSpot Services to execute on Company initiatives, industry best practices, TV advertising trends, and discussion of other topics of interest. Onboarding services and education will be conducted at the onset of the engagement to drive the comprehension and application of iSpot Services. This may include small group classroom trainings (virtual), demos, or workshops.
   2. iSpot Data and Company Data
      1. iSpot Data. The iSpot Data is comprised of any and all data, metrics and analytics made available to Company via the iSpot Services (including IULD), excluding any underlying Company Data.
      2. Company Data. Company Data means data collected directly from Company, data provided by or on behalf of Company, and/or data owned by Company. Company Data may be collected through the use of the iSpot tracking pixel embedded on the Company’s websites, log level transfer, server to server transfer, and/or Company’s apps. Company Data generally includes its customer information like website visits, app installation, session data, online sales, and offline data. Company warrants to iSpot that it holds the necessary rights, licenses, consents, waivers, and permissions to collect and deliver such Company 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.
   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 Services 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.
2. PERMITTED USES AND RESTRICTIONS
   1. Permitted Use. Subject to the terms and conditions of this Agreement, iSpot grants Company a limited, revocable, non-exclusive, non-sublicensable license to use the Licensed Services as indicated on the Order Form to:
      1. View and download the iSpot Services and iSpot Data for the purpose of tracking, measuring, and analyzing the Company’s own and its competitor’s advertising activities.
      2. Combine the iSpot Services and iSpot Data with Company Data for the purpose of generating aggregate analytics on the effectiveness of its marketing activities.
      3. Make creative optimization and media buying decisions for Company ad campaigns.
      4. Share any work product created following the use of the iSpot Data within Company’s own organization.
      5. Enable an Agency assisting the Company with its advertising and media buying activities to access the iSpot Services strictly via the iSpot Dashboard.
      6. Rate and analyze advertisements and create analytical reports using the iSpot Services.
   2. Restrictions.
      1. Each Licensed User Seat may only be used by one individual accessing the data from no more than three personally or Company owned devices.
      2. Company may only use the iSpot Services and iSpot Data for internal research purposes and in accordance with the terms of this Agreement. Company may not share any iSpot Services and iSpot Data outside of Company’s organization, other than with its Agency as permitted in Section 2.1(e).
      3. Company may not re-identify or de-anonymize the iSpot Services and iSpot Data or otherwise associate the iSpot Services and iSpot Data with personal information.
      4. If Company receives access to IULD, Company may not use the IULD for the purpose of delivering targeted or re-targeted advertisements
      5. If Company receives access to IULD, it must store IP Addresses and Mobile Device IDs (MAIDs, UDIDs, IDFA and AAID) securely at rest using an industry-standard AES-256 encryption algorithm.
      6. Company may not resell, redistribute, sublicense, copy, transfer, lease, or authorize the resale or redistribution, sublicensing, copying, transferring, or leasing of the iSpot Services, the iSpot Data or any element thereof to any third party.
      7. Company may not modify, create derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code, underlying trade secrets, underlying user interface techniques, or algorithms, of the iSpot Services or iSpot Data.
      8. Company may not use the iSpot Services or iSpot Data to build or contribute to any other third-party TV monitoring or analytics service.
      9. Company may not access (or attempt to access) the iSpot Services or iSpot Data by any means other than as provided for in this Agreement, unless otherwise authorized by iSpot in writing.
      10. Company may not attempt to circumvent any license, timing or use restrictions that are built into the iSpot Services or iSpot Data.
      11. Unless otherwise authorized, Company will not use the iSpot Services or iSpot Data as an endorsement of any party or service.
      12. Company may not transmit any iSpot Services or iSpot Data outside the United States.
      13. 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 Services and iSpot Data (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.
      14. Company may not use the iSpot Service nor iSpot Data for other uses not explicitly granted under this Agreement.
3. TERMINATION OR EXPIRATION
   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 at the conclusion of the Initial Term or the then current Renewal Term upon written notice received by the non-terminating party not less than thirty (30) days prior to the end of the then current Term.
   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 Services. Each Party shall delete and destroy the other Party’s Confidential and Non-confidential Information, except as otherwise provided. To maintain continuous access to Trial Services, Company must agree to license the Services at the conclusion of a Trial Term or immediately cease use of Trial Services 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.
      
      In the event the DAA with VIZIO is terminated, the license to use the IULD under this Agreement shall automatically terminate, and any pre-paid fees related to the IULD service past the terminate date shall be refunded to Company.
4. CONFIDENTIALITY
   1. Definition. For the purposes of this Agreement, “Confidential Information” means (i) the iSpot Services and iSpot Data; (ii) Company Data; (iii) any document a disclosing party marks “Confidential”; (iv) any information a disclosing party verbally designates as “Confidential” at the time of disclosure; and (v) 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.
   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.
5. FEEDBACK. Company agrees to grant, and hereby does grant to iSpot a royalty-free, worldwide, perpetual license to use or incorporate into the iSpot Services and iSpot Data any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Company or its Users relating to the operation of the iSpot Services (“Feedback”).
6. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ISPOT HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE ISPOT SERVICES AND ISPOT DATA OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIABILITY AND INDEMNITY.
   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 any third party claim that Company’s use of the iSpot Services or 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.
   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 Company’s actual or alleged breach of this Agreement.
   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.
   4. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS IN SECTION 7.1 OR 7.2, 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 7.1 OR 7.2, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE GREATER OF (A) TWICE THE AMOUNT PAID BY COMPANY TO ISPOT UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (B) ONE MILLION DOLLARS ($1,000,000).
8. GENERAL
   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.
   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.
   3. 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. 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:
      iSpot.tv, Inc. | Attn: Legal and Business Affairs
      15831 NE 8th Street
      Bellevue, WA 98008-3916
   4. Entire Agreement, Modification, Waiver. This Agreement, including the exhibits hereto, contains the entire understanding of the parties hereto and supersedes all (i) previous agreements or arrangements, as well as any oral or written communication between the parties hereto relating to the subject matter hereof or (ii) terms and conditions contained in any purchase orders. 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.
   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.
   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. A digital, fax, or, PDF page bearing a valid signature, digital or actual, shall be deemed a signed page
   7. 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.
   8. Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.
   9. 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.
   10. Survival. The provisions of Section 1.3 (“Retained Rights”), Sections 2.2 (“Restrictions”), 3.2 (“Events upon Termination or Expiration”), 4 (“Confidentiality”), 6 (“Disclaimer of Warranties”), 7 (“Liability and Indemnity”), and 8 (“General”) will survive the expiration or earlier termination of this Agreement.
   11. Assignment. Neither party may assign this Agreement without the other party’s prior written approval, which shall not be unreasonably withheld. Notwithstanding the above, a party may assign the Agreement as a result of a change of control involving such party to its successor upon notice to the other party, but, if the Agreement includes an IULD license, the assignment is conditioned upon (i) Company providing iSpot prior written notice of such assignment, and (ii) the successor-in-interest not being a direct competitor of iSpot or VIZIO. If this Agreement is assigned by Company, the assignee may only use the iSpot Services and iSpot Data for the Licensed Brands and Licensed Industries shown on the Order Form. Any purported assignment in violation of this paragraph is void and shall cause the immediate termination of this Agreement.

STAND-ALONE

v. 11.15.2022