This Master Services Agreement (the “Agreement”) is entered into by and between MediaJel, Inc., a Nevada corporation (“MediaJel”), and Company, effective as of the date of MJAA signature, and will govern Company’s use of the Services (as defined below). MediaJel and Company hereby agree as follows:
MASTER SERVICES AGREEMENT
1. SCOPE OF SERVICES
1.1 General: MediaJel shall use commercially reasonable efforts to provide access to the MediaJel platform and related services to Company pursuant to the terms of this Agreement, the DPA, and any related agreements between the parties, including statements of work (collectively, the “Services”). In the event of a conflict between the terms of this Agreement and any other applicable agreements, this Agreement shall control unless otherwise expressly provided; provided, however, in the event of a conflict between the terms of this Agreement and the DPA, the DPA shall control. Company understands and agrees that MediaJel may provide Services directly or through affiliates, agents, employees or subcontractors.
1.2 Proposal: Any proposal (“Proposal”) entered into hereunder shall represent each party’s good faith estimate of the scope of work and items and time required to complete the Services and deliverables contracted for thereunder. Each Proposal will contain any necessary project-specific terms and conditions including, but not limited to, cost and payment provisions, acceptance criteria for deliverables, change management procedures, and any other terms necessitated by the scope and/or requirements of the individual Proposal. The terms of this Agreement are hereby incorporated by reference in any and all Proposals between the parties.
2. TERMS OF SERVICE
2.1 Provision of Services: Subject to Company meeting its payment obligations, MediaJel will provide to Company the Services as described herein and/or in any Proposals. This Agreement applies to Company’s use of the Services for itself and/or on behalf of any Company clients.
2.2 Company Obligations: Company shall not violate, or use the Services in a way that violates (or causes MediaJel to violate), Section 5 of this Agreement (Compliance) or any applicable law or third party rights. Company bears sole responsibility for what its authorized users (“Users”) do with Company Information (as defined below in Section 3.3), the actions of Users within the Services, and for adequate security, protection and backup of Company Information when in Company’s or its Users’, representatives’ or agents’ possession or control.
2.3 Service License and Limits: As between MediaJel and Company, MediaJel owns all rights, title and interest in and to MediaJel IP (as defined below) and the Services, including future developments and enhancements. Notwithstanding the foregoing, MediaJel grants to Company a limited, non-exclusive, non-transferable, and revocable right to access and use the Services, subject to the terms and conditions of this Agreement. Except as otherwise provided in this Section 2.3, MediaJel does not grant Company any other license whatsoever to any MediaJel IP, express or implied. MediaJel reserves all rights not expressly granted hereunder, including the right to continually evolve the Services and all related technologies therein. MediaJel’s intellectual property includes MediaJel’s Confidential Information (as defined in Section 11) and all aspects of its technology, branding, and Services, including any underlying software or applications developed or created by it (“MediaJel IP”). Company grants MediaJel and its affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification or other feedback provided by Company relating to the provision of the Services.
2.4 Service Guidelines: Company shall not (and shall not permit any User, affiliate or third party to) make any use or disclosure of the MediaJel platform (or any documentation relating to the MediaJel platform that MediaJel generally provides to its customers (the “Documentation”)) that is not expressly permitted under this Agreement. Without limiting the foregoing, except as otherwise expressly permitted under this Agreement, Company shall not (and shall not permit any User, affiliate or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the underlying structures, algorithms, ideas, know-how or any other information of or related to the MediaJel platform or Services; (ii) modify, translate, adapt or create derivative works based on the MediaJel platform the Documentation, or the Services; (iii) make any copies of the MediaJel platform or the Documentation; (iv) resell, distribute, or sublicense the MediaJel platform or the Documentation; (v) make the MediaJel platform available on a timesharing or “service bureau” basis, or otherwise allow any third party to use or access the MediaJel platform or the Documentation; (vi) remove or modify any proprietary marking or restrictive legends placed on the MediaJel platform or the Documentation; (vii) use the MediaJel platform, the Documentation, or MediaJel data for any purpose not expressly permitted in this Agreement or in violation of applicable law; (viii) introduce into the MediaJel platform any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (ix) use the MediaJel platform in connection with any advertisements that do not comply with Section 5.1; (x) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules or other data provided by or obtained from MediaJel that allows MediaJel to measure ad performance and provide the MediaJel platform and/or the Services; (xi) use the MediaJel platform to target advertisements to individuals younger than the minimum age as determined by applicable law for the given target industry (e.g., 21 years for alcohol) (“Underage Individuals”), or (xii) use the MediaJel platform to target advertisements to users generally accepted as “sensitive” pursuant to Internet advertising industry guidelines unless pursuant to an opt-in policy. If Company violates this Section 2.4, MediaJel shall have the right to deem such violation a material breach of this Agreement and reserves the right, in its sole discretion, to deny Company and its Users access to the MediaJel platform, or any portion thereof, and to remove the Company’s advertisements from the MediaJel platform. Additionally, Company agrees to pay or accept reduction of payment for all damages caused during the use of the MediaJel platform by AdWare, Malware, Botnets, or other deceptive or fraudulent traffic that results in loss of revenue for MediaJel. Company agrees that MediaJel’s decision on said traffic will be final and MediaJel will provide information pertaining to this decision when available. Under no circumstances may Company use the Services for benchmarking or gathering data on the performance of the Services or MediaJel systems for competitive intelligence.
2.5 Service Security: MediaJel shall take steps to preserve the integrity and security of Company Information as set forth in the DPA. However, MediaJel cannot guarantee that unauthorized third parties will never be able to defeat such security measures or use Company Information for improper purposes. Company understands and acknowledges that it provides MediaJel with Company Information at its own risk, and that MediaJel shall not be liable to Company for any damages relating to any unauthorized access to Company Information by third-parties.
3. USE OF DATA
3. 1 Publisher and End User Information: Company will have access to detailed information about Publisher Sites through the Services, including but not limited to their targeting and blocking criteria. Company will only permit Company employees who are directly involved in using the Services to access such information, will only use this information for the purpose of buying inventory through the Services and will treat such information as MediaJel’s Confidential Information. Company may not create targeting profiles or segments or make advertising unit inventory available on the MediaJel platform on the basis of the Publisher Sites that a user has visited, the Services categories that apply to the Publisher Sites, the content on the Publisher Sites’ pages, or the general interest area(s) covered by the Publisher Sites. In addition, and without limiting any of Company’s other obligations in this Agreement, Company shall not use any persistent identifier to target users of the Publisher Sites or make advertising unit inventory available that is directed or targeted at Underage Individuals or that Company knows or should know are used by a substantial or disproportionately high ratio of Underage Individuals. The foregoing does not prohibit Company from targeting its advertisements in real time on the basis of the Publisher Site categories shown through the Services, provided that Company may not retain such information and/or include it in a targeting profile or segment.
3.2 Services Data: Aside from the Publisher Site and end user information described above, Company may not disclose or use the data generated by Company’s use of the Services, including but not limited to ad inventory availability, volume or pricing data obtained via the Services, for any business purpose except if (a) it complies with its privacy policies and this Agreement, and (b) it does not disclose data that describes or reflects the performance of the Services (or any other MediaJel services) to third parties, except for those who have a need to know (e.g. to provide reporting to Company’s clients about such client’s advertising transactions within the Services) and are under confidentiality restrictions at least as restrictive as those contained in this Agreement; provided, however, that Company will be fully responsible for the improper or unauthorized disclosure or use of such data by such third parties. In addition, except as required by law, Company is prohibited from disclosing, either directly or indirectly, to any third parties the identity of any sellers of ad inventory for Publisher Sites and/or owners of the Publishers Sites via the Services. Company acknowledges that other participants of the Services may have access to information related to Company (e.g., sellers have access to information about the advertisers who purchase their inventory).
3.3 Company Information: Company shall own any data and/or information that it provides to MediaJel via the Services (“Company Information”). Company Information also includes any data that is independently derived by Company from a user’s “click” or other interaction with Company’s advertising unit and not related to the owners of Publisher Sites and/or sellers. Company hereby grants MediaJel the right to use and disclose Company Information (i) as aggregate Service statistics; (ii) to provide, manage, maintain and enhance the Services; (iii) as chosen by Company in relation to Company’s use of the Services (e.g. to be shared with third parties whose services Company elects to use via the Services); and (iv) as legally necessary, including to enforce MediaJel’s rights under this Agreement. Notwithstanding anything in the Agreement to the contrary, Company hereby grants to MediaJel a nonexclusive, worldwide, personal, royalty free, non-sublicensable and non-transferable license to the Company Information solely for the purpose and only to the extent and for the time period necessary for MediaJel (including its independent consultants) to design, develop, test, operate, enhance and maintain any deliverables and provide the Services.
4. 1 Payment Terms: MediaJel shall invoice Company, and Company shall pay MediaJel, pursuant to the terms set forth in any applicable Proposal. Company will raise any questions or disputes within thirty (30) days following the date of invoice. Company is responsible for providing complete and accurate billing and contact information to MediaJel and promptly notifying MediaJel of any changes to such information. Notwithstanding any of the foregoing, Company further understands and agrees that Company will be responsible for the payment of any amounts due hereunder whether or not Company is paid by third-party clients, if any, on behalf of whom Company is creating, delivering, disclosing or distributing one or more advertisements through the Services. In addition, in the event that Company terminates this Agreement and/or any Proposal before the end of a payment period, MediaJel will not prorate any payments owed by Company, including the Commitment Amount (as defined below) or any other associated fees. Except for taxes on MediaJel’s income, Company is responsible for paying all applicable sales, use or other taxes or duties, tariffs, etc. applicable to the Services. If MediaJel becomes concerned about Company’s ability to pay on time or at all, MediaJel may bill in advance or require a deposit. Company will pay MediaJel all amounts in US dollars. MediaJel reserves the right to charge the legal maximum interest rate on any late payment.
4.2 Commitment Amount: As applicable, if Company commits to a specified amount to pay on a particular campaign set forth in a Proposal (“Commitment Amount”), and if the actual spend for such campaign does not reach the Commitment Amount, then Company will still owe payment for the full Commitment Amount and/or will not be reimbursed or refunded for the difference.
5. 1 Compliance Requirements: Each party will comply with all applicable laws and regulations (MediaJel as to its provision of the Services and Company as to its use of the Services). Without limiting the generality of the foregoing, Company agrees that all advertisements with which Company uses the Services (and any content that is linked to any such advertisements) for itself or on behalf of its clients (a) will comply with all applicable laws and regulations, including but not limited to state and local regulated industry laws and regulations (e.g., laws and regulations relating to alcohol, cannabis, and gambling and Underage Individuals thereto), HIPAA, and any other applicable privacy laws, (b) will not contain content or materials that are misleading, libelous, obscene, invasive of others’ privacy, or hateful (racially or otherwise), (c) will not introduce viruses or other malware to the Services or MediaJel’s systems or end users, (d) will not infringe, violate or misappropriate any third party’s intellectual property or other rights, (e) will not facilitate or promote illegal activity, or contain content that is illegal; (f) will not contain content that is deceptive, misleading, defamatory, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, color, creed, age, sexual orientation, or disability; (g) will not contain sexually suggestive, explicit, or pornographic content; (h) will not infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; (i) will not spawn additional windows or messages beyond the original ad; (j) will not distribute adware, spyware, or viruses; (k) will not auto-forward users’ browsers; (l) will not resemble system dialogue boxes or error messages; and (m) will not intentionally obscure or falsify the source of the inventory or artificially inflate the volume of such inventory in any way. Company will not use the Services in a manner that violates its agreements with third parties or could reasonably be expected to damage the Services or reflect unfavorably on the reputation of MediaJel or its clients. Company will comply with any blocking criteria that are associated with a bid request placed in connection with the Services. MediaJel reserves the right to refuse any advertisements through the Services from Company. Company will not export, re-export or transfer any portion of the Services except as permitted by applicable export laws or regulations.
5.3 Audits: MediaJel reserves the right to audit Company’s use of the Services and related activities to ensure Company’s compliance with the terms of this Agreement and any applicable laws and regulations. Any audit will occur upon reasonable advance written notice to Company, and will occur during normal business hours in a manner designed not to unreasonably interfere with Company’s ordinary business operations, and no more than once every twelve (12) month period unless MediaJel finds, based on a previous audit, that Company materially breached this Agreement or any applicable laws and regulations.
6. TERM, SUSPENSION, AND TERMINATION
6.1 Term: The term of this Agreement shall begin on the Effective Date and continue for one (1) year following the Effective Date with an automatic one (1) year renewal term.
6.2 Suspension: MediaJel may suspend Company’s use of the Services immediately upon written notice to Company (email being sufficient) if MediaJel: (i) believes that Company has violated Sections 2.2, 3.1, 3.2 and/or 5 of this Agreement, (ii) MediaJel receives complaints about Company, or (iii) Company has failed to pay an invoice in full within thirty (30) days of its due date or within ten (10) days of receiving a late notice from MediaJel.
6.3 Termination: Either party may terminate this Agreement: (i) immediately upon written notice if the other party becomes insolvent, or if there are proceedings instituted by or against the other party in bankruptcy or under other laws of or pertaining to insolvency, creditors’ rights or reorganization, receivership or dissolution, or if the other party makes an assignment for the benefit of creditors; (ii) immediately upon written notice, if the other party is in breach of any its obligations under this Agreement or any applicable Proposal and such breach remains uncured for thirty (30) days following written notice of such breach from the non-breaching party; (iii) at any time by providing the other party written notice at least ninety (90) days prior to the termination date designated in that notice, provided however that any amounts set forth in a Proposal that become due and owing during the period from the date of the notice until the termination date shall continue to be due and owing notwithstanding such notice of cancellation; and (iv) upon forty-eight (48) hours written notice to the other party provided that all Proposals have been effectively terminated. Upon such termination, Company’s right to use the Services shall immediately terminate.
6.4 Effect of Termination or Expiration: Proposals entered into prior to the effective date of the expiration or termination of this Agreement will terminate upon such expiration or termination unless as expressly otherwise provided therein. The parties will not execute any further Statements of Work after any expiration or termination of this Agreement. If a Proposal is terminated, Company will pay MediaJel for all deliverables delivered and Services performed under that Proposal prior to the date of termination, as well as any charges and expenses for the deliverables in development, if any. Promptly after (and only after) receiving full payment therefor, MediaJel will deliver to Company any such Deliverables in development (on an ‘as-is’ basis and not subject to Company’s acceptance).
7. REPRESENTATIONS AND WARRANTIES
7. 1 MediaJel: MediaJel represents and warrants to Company that: (i) this Agreement, the DPA, and any applicable Proposals constitute the legal, valid and binding obligations of MediaJel, enforceable against MediaJel in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain those remedies may be pending; (ii) MediaJel has all requisite corporate power and authority to enter into this Agreement and to carry out the Services contemplated by this Agreement and any applicable Proposals, and that the execution, delivery and performance of this Agreement and any applicable Proposals and the consummation of the transactions contemplated herein and therein have been duly authorized by all requisite corporate action on the part of MediaJel; (iii) MediaJel’s execution and delivery of this Agreement and MediaJel’s performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which MediaJel is bound or to which MediaJel ‘s properties are subject; and (iv) to the best of MediaJel’s knowledge, there are no currently pending or threatened lawsuits, actions or any other legal or administrative proceedings against MediaJel which, if adversely determined against MediaJel, would have a material adverse effect on MediaJel’s ability to perform its obligations under this Agreement.
7.2 Company: Company represents and warrants that to MediaJel that: (i) this Agreement, the DPA, and any applicable Proposals constitute the legal, valid and binding obligations of Company, enforceable against Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to equitable remedies, to the discretion of the court before which proceedings to obtain those remedies may be pending; (ii) Company has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement and any applicable Proposals, and that the execution, delivery and performance of this Agreement and any applicable Proposals and the consummation of the transactions contemplated herein and therein have been duly authorized by all requisite corporate action on the part of Company; (iii) Company’s execution and delivery of this Agreement and Company’s performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which Company is bound or to which Company‘s properties are subject; (iv) to the best of Company’s knowledge, there are no currently pending or threatened lawsuits, actions or any other legal or administrative proceedings against Company which, if adversely determined against Company, would have a material adverse effect on Company’s ability to perform its obligations under this Agreement; (v) it has the necessary rights, licenses and approvals (or that it will obtain such rights and approvals prior to providing to MediaJel for MediaJel’s use of all Company Information; and (vi) Company will not, and will not attempt to or cause any other party acting on its behalf to, decompile, reverse engineer or otherwise attempt to derive, obtain or modify the source code of the Services or any MediaJel IP.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, MEDIAJEL MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE.” IN ADDITION, MEDIAJEL DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA OR REPORTING WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE SERVICES OR THE INFRASTRUCTURE THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MEDIAJEL EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NONINFRINGEMENT, COURSE OF DEALING OR PERFORMANCE. ANY THIRD-PARTY TECHNOLOGY DELIVERED TO COMPANY BY MEDIAJEL UNDER THIS AGREEMENT IS WITHOUT WARRANTY OF ANY KIND FROM MEDIAJEL. THIS DISCLAIMER INCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF NONINFRINGEMENT OR OTHERWISE.
9. LIMITATION OF LIABILITY.
EXCEPT FOR BREACH OF SECTIONS 3, 5, 12, OR INDEMNIFICATION OBLIGATIONS HEREIN, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF SECTIONS 3, 5, 12, OR INDEMNIFICATION OBLIGATIONS HEREIN, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED TWO TIMES THE AMOUNT CHARGED TO COMPANY BY MEDIAJEL UNDER THIS AGREEMENT AND ANY STATEMENTS OF WORK FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE.
10. 1 Indemnification by Company
A. Company will indemnify, defend, and hold harmless MediaJel and its affiliates, directors, officers, employees and agents (the “MediaJel Indemnified Parties”) against any and all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any claim arising from, in connection with, or based on allegations of, any of the following:
- that any Company Information infringes any third party’s copyright or trade secrets or that Company’s use of the Services infringes any third party’s copyright or trade secrets;
- Company’s breach of any terms of this Agreement and/or Proposal, including the inaccuracy, untruthfulness, or breach of any representation or warranty made by Company under this Agreement or any Proposal;
- any amounts, including taxes, interest, and penalties, assessed against MediaJel that are the obligation of Company pursuant to this Agreement;
- Company’s failure to comply with any applicable laws, and any fines or penalties imposed by law on MediaJel due to any act or omission by Company; and
- data loss and/or security breach of Company’s data or systems resulting in unauthorized disclosure, destruction, loss or alteration of MediaJel Confidential Information in the possession or control of Company.
B. Company shall indemnify MediaJel from any costs and expenses incurred in connection with the enforcement of this Section 10.1.
10.2 Indemnification by MediaJel
A. MediaJel will indemnify, defend, and hold harmless Company and its affiliates, directors, officers, employees and agents (the “Company Indemnified Parties”) against any and all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any claim arising from, in connection with, or based on allegations of, any of the following:
- MediaJel’s breach of any term of this Agreement and/or Proposal, including the inaccuracy, untruthfulness, or breach of any representation or warranty made by MediaJel under this Agreement or any Proposal;
- any amounts, including taxes, interest, and penalties, assessed against Company that are the obligation of MediaJel pursuant to this Agreement; and
- MediaJel’s failure to comply with any applicable laws, and any fines or penalties imposed by law on Company due to any act or omission by MediaJel.
B. MediaJel shall indemnify Company from any costs and expenses incurred in connection with the enforcement of this Section 10.2.
10.3 Notice and Assistance: An indemnifying party under this Section 10 will only be obligated to provide indemnification under this Agreement if the indemnified party: (a) notifies the indemnifying party promptly in writing of the claim; (b) permits the indemnifying party sole control to defend, compromise or settle the claim (provided the indemnifying party may not settle any claim without the consent of the indemnified party where the settlement involves a remedy other than the payment of money); and (c) provides all available information, assistance and authority at the indemnifying party’s reasonable expense to enable the indemnifying party to defend the claim. The indemnified party may participate in the defense or settlement of any claim at its own expense.
“Confidential Information” means any information relating to or disclosed in the course of this Agreement and/or any Proposals which is or should reasonably be understood to be confidential, including each party’s intellectual property. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by the other without the written consent of the other) and data regarding the performance of the Services and MediaJel systems is MediaJel’s Confidential Information. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party shall not disclose Confidential Information to the receiving party’s employees, agents, consultants, subsidiaries, corporate affiliates or any other third parties (“Representatives”), except when disclosure is necessary to perform the obligations under this Agreement, provided that any such recipient shall be under the same obligations of confidentiality as that of the receiving party and shall be contractually bound to protect the Confidential Information consistent with the terms of this Agreement and the receiving party shall be fully responsible for any unauthorized use or disclosure by its Representatives of the disclosing party’s Confidential Information. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party, except that any archival copies may be retained, subject to the continuation of the confidentiality obligations pursuant to this Section 11. “Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was legally in possession of the receiving party prior to the time of its disclosure by the disclosing party other than through a prior disclosure by disclosing party; or (c) was independently developed by the receiving party without violation of this Section 11. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure.
Neither Company nor any of its representatives, including without limitation its directors, officers, employees, agents and advisors, shall, without the prior written approval of MediaJel, directly or indirectly, solicit, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any of MediaJel’s employees, service providers or sellers or owners of Publisher Sites which Company encounters via the Services to leave or otherwise terminate such person’s relationship with MediaJel or any of its affiliates, as applicable, for a period of one year following the effective termination date of this Agreement.
13. 1 Public Statements: Neither party will make any public statement relating to the Agreement without the prior written approval of the other, provided that MediaJel may include Company’s name and logo on its marketing and promotional materials and customer lists. In addition, MediaJel may include Company’s name and positive information metrics in case studies that MediaJel shares with its potential customers, provided that such information is covered by confidentiality obligations.
13.2 Entire Agreement; Amendment; Survival: This Agreement, together with the DPA and any applicable Proposals, represent the entire agreement of the parties relating to the subject matter herein, and supersedes all prior commitments, negotiations and understandings with respect to Company’s participation in and use of the Services. In addition, this Agreement supersedes any click-through agreement on Company’s or its affiliate’s website, including but not limited to for the purpose of registering an account to access reporting and other usage information, whether or not any such click-through agreement is ‘accepted’ by MediaJel before, on or after the Effective Date. This Agreement cannot be amended except by a writing signed by both parties. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected. Sections 3, 4, and 8 through 12 of this Agreement will survive termination or expiration of this Agreement. Any claim arising out of or related to this Agreement must be brought in the initiating party’s individual capacity and not as a plaintiff or class member in any class action or other similar proceeding.
13.3 Notices: Notices must be in writing and will be deemed given when sent by email: if to MediaJel to the following email address: email@example.com and if to Company to its specified representative at the email address provided herein, if the sending party can confirm that the email was apparently sent successfully according to its ordinary technical records and does not receive an error notice. Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone.
13.4 Governing Law: This Agreement will be governed and construed, to the extent applicable, in accordance with California law
13.5 Counterparts: Multiple signature pages, signatures delivered via scanned-in PDF copy or fax, and electronic signatures will all constitute originals and together will constitute one and the same instrument.
13.6 Force Majeure: Neither party will be liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or degradation or failure of third party networks or communications infrastructure.
13.7 Disputes: The parties agree to meet and confer in good faith on all matters of common interest or all controversies, claims, or disputes (“Dispute”) which materially affect the performance of either party under this Agreement. As soon as a Dispute is recognized by either party, it will communicate the substance of such Dispute to the other party. Once a Dispute has been raised, the parties will make all reasonable efforts to reach a resolution within two (2) weeks after the Dispute has been identified. During the pendency of any Dispute, unless Company instructs MediaJel to cease work under the relevant Proposal until resolution of the Dispute, both parties shall continue performing their respective duties and obligations (including payment obligations) under this Agreement and the relevant Proposal.
13.8 Arbitration: All Disputes arising out of or relating to this Agreement, which cannot first be resolved in accordance with Section 13.7, shall be resolved exclusively by submission to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any arbitration will be conducted in Contra Costa County California before a single arbitrator. California law shall apply to any Dispute, without giving effect to any conflict or choice of law rule or provisions. Any arbitration award may be entered in and enforced by any court having jurisdiction thereof, and the parties consent and commit themselves to the jurisdiction of the courts of the State of California for purposes of any enforcement of any arbitration award. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or result of any arbitration hereunder without the prior written consent of both parties. During the pendency of any Dispute, unless Company instructs MediaJel to cease work under the relevant Proposal until resolution of the Dispute, both parties shall continue performing their respective duties and obligations (including payment obligations) under this Agreement and the relevant Proposal.
13.9 No Assignment: Neither Company nor MedjaJel may assign or otherwise transfer this Agreement or rights hereunder without the prior written consent of the other. Waiver by Company or MediaJel, respectively, as to any transaction shall not operate as a waiver of the prohibition contained herein or such party’s rights as to any subsequent transaction. Notwithstanding the foregoing, either party may assign this Agreement to (a) a parent or subsidiary corporation or corporation owned by a parent corporation; or (b) a person or entity which, through merger, acquisition or otherwise, succeeds to all or substantially all of such party’s business, provided such assignee agrees in writing to be bound by the terms and conditions of this Agreement. Further notwithstanding the foregoing, Company or MediaJel, respectively, as assignor or transferor shall remain fully responsible and liable for the performance of all of its covenants and obligations under this Agreement and any assignee, transferee or successor, shall be jointly and severally liable with assignor or transferee for the performance of all such covenants and obligations.
13.10 No Joint Venture: MediaJel is an independent contractor and will determine the method, details, and means of performing the Services. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between the parties. Except as expressly set forth in this Agreement, no party is by virtue of this Agreement authorized as an agent, employee or legal representative of the other party.
- No Third-Party Beneficiary: This Agreement is made and entered into for the sole protection and benefit of the parties to this Agreement and is not intended to convey any rights or benefits to any third party, nor will this Agreement be interpreted to convey any rights or benefits to any person except the parties to this Agreement, except as set forth in Section 10 hereof.
13.11 Representation of Counsel; Mutual Negotiation: Each party acknowledges it has had the opportunity to be represented by counsel of its choice in negotiating this Agreement. This Agreement will therefore be deemed to have been negotiated and prepared at the joint request, direction, and construction of the parties, at arm’s length, with the advice and participation of counsel, and will be interpreted in accordance with its terms without favor to either party.
Exhibit A: DATA PROCESSING AGREEMENT
This Data Processing Agreement (this “DPA”) is made as of date of MJAA signature (the “Effective Date”) by and between MediaJel Incorporated (“Service Provider”) and (“Company”). Company and Service Provider are referred to individually as a “Party” and collectively as the “Parties.”
Whereas the Parties have entered into one or more agreements under which Service Provider has agreed to perform services on behalf of Company, including a Master Services Agreement (“MSA”) and/or Proposal (“Proposal”) (the “Agreements”), and the Parties wish to address requirements imposed by applicable US information privacy and data security laws, the Parties agree as follows:
1. KEY DEFINITIONS
1. 1 “Company Personal Information” means any Personal Information other than Unique Identifiers provided directly by Company to Service Provider for business purposes pursuant to the Agreements. For the avoidance of doubt, Company Personal Information shall not include MediaJel Personal Information.
1.2 “Covered Personal Information” means both Company Personal Information and MediaJel Personal Information.
1.3 “MediaJel Personal Information” means any Unique Identifiers collected or received by Service Provider in the course of providing the Services.
1.4 “Personal Information” shall be interpreted consistent with the Privacy Laws, and includes at a minimum “personal information” as that term is defined in the CCPA. Personal Information does not include “aggregate consumer information” or “deidentified” data as defined in the State Privacy Laws.
1.5 “Portable Format” means to the extent technically feasible a structured, commonly used, machine readable, readily usable format that allows the consumer to transmit the Covered Personal Information to another entity or controller without hindrance, as further specified in the State Privacy Laws.
1.6 “Privacy Laws” means applicable statutes, regulations or other laws pertaining to privacy and information security, including, where applicable, the State Privacy Laws.
1.7 “Unique Identifiers” means a persistent identifier that can be used to recognize a consumer or device over time and across different services, including, but not limited to a device identifier, an IP address, cookies, beacons, pixel tags, mobile ad identifiers, or similar technology, customer number, unique pseudonym, user alias, or other hashed persistent identifiers. Unique Identifiers includes information processed through the nid and csync cookies and the IDFA or AAID mobile identifiers.
1.8 “State Privacy Laws” mean US state privacy laws such as the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq., as amended (the “CCPA”), or any regulations or guidance issued pursuant thereto.
1.9 The terms “aggregate consumer information,” “business,” “business purposes,” “consumer,” “controller,” “deidentified,” “processing,” “processor,” “sale,” “sensitive data,” “sensitive personal information,” “service provider,” “sharing,” and “verifiable consumer request” shall have the meanings given to those terms in the State Privacy Laws.
1.10 “Services” means the services provided by Service Provider as specified in the Agreements.
2. TERMS OF DATA PROCESSING
2.1 Compliance with Laws – Service Provider shall comply with all applicable laws, including Privacy Laws, with respect to its performance under the Agreements and this DPA and shall not cause Company to violate applicable law.
2.2 Relationship of the Parties – The Parties acknowledge and agree that:
- Service Provider will process Company Personal Information in accordance with the Agreements and this DPA for the duration of the provision of the Services to Company. Company discloses the Company Personal Information to Service Provider for limited and specified purposes described in the Agreements and this DPA. Service Provider receives no monetary or other valuable consideration in exchange for the Company Personal Information.
- As between Service Provider and Company, Service Provider has all necessary rights, licenses, and authority to use, share, sell, resell, disclose, or create derivative works from MediaJel Personal Information. To the extent Company owns or claims ownership of any MediaJel Personal Information, Company grants to Service Provider a nonexclusive, worldwide, royalty-free license to use, share, sell, resell, disclose, or create derivative works from MediaJel Personal Information.
2.3 Compliance with Obligations – Service Provider represents and warrants that Service Provider, its employees, agents, subcontractors, and sub-processors (a) understand and shall comply with the State Privacy Laws and this DPA while providing the Services, (b) will provide the level of privacy protection required by the State Privacy Laws, and (c) shall provide Company with all reasonably-requested assistance to enable Company to fulfill its own obligations under the State Privacy Laws.
2.4 Changes to State Privacy Laws – The Parties agree to cooperate in good faith to enter into additional terms to address any modifications, amendments, or updates to the State Privacy Laws, including new laws that become effective at the US state level from time to time.
2.5 Retention – Service Provider shall retain Company Personal Information only for as long as necessary to fulfill its obligations pursuant to the Agreements and applicable laws. Upon Company’s written request and following expiration or termination of the Agreements, Service Provider will return or, at Company’s request, securely destroy any Company Personal Information in Service Provider’s possession, custody, or control and certify in writing that such return or secure destruction has occurred.
2.6 Disclosure – To the extent Company directs Service Provider to disclose Covered Personal Information to third parties designated by Company on Company’s behalf, Company shall ensure that such disclosure and such third party’s processing of such Covered Personal Information complies with the DPA and the Privacy Laws.
3. LIMITATIONS ON USE OF COMPANY PERSONAL INFORMATION
3.1 CCPA Restrictions – Service Provider agrees that it will not retain, use, sell, or disclose any Company Personal Information provided by or on behalf of Company for any purpose other than (a) providing the Services under the Agreements and (b) using the Company Personal Information internally to verify or maintain the quality or safety of the Services, and to improve, upgrade, or enhance the Services for Company. Service Provider further acknowledges that it is prohibited from (a) retaining, using, or disclosing the Company Personal Information outside of the direct business relationship with Company, or (b) using Company Personal Information to (i) build or modify household or consumer profiles to use in providing services to another business, or (ii) correct or augment data acquired from another source.
3.2 Compliance Remediation; Termination Rights – Service Provider agrees to notify Company without undue delay if Service Provider determines that it can no longer meet its obligations under State Privacy Laws. Upon receiving notice from Service Provider in accordance with this subsection, Company may direct Service Provider to take steps as reasonable and appropriate to remediate unauthorized use of Company Personal Information or terminate the Agreements upon thirty (30) days’ notice.
3.3 Subcontractors; Sub-processors – Service Provider shall notify Company of any intended changes concerning the addition or replacement of subcontractors or sub-processors. Further, Service Provider shall ensure that Service Provider’s subcontractors or sub-processors who collect, process, store, or transmit Company Personal Information on Service Provider’s behalf agree in writing to the same restrictions and requirements that apply to Service Provider in this DPA and the Agreements with respect to Company Personal Information, as well as to comply with the Privacy Laws. Service Provider shall be responsible and remain liable to Company for its subcontractors’ compliance with the terms of this DPA.
4. CONSUMER REQUESTS
4.1 Cooperation – Service Provider will implement and maintain sufficient processes and procedures to satisfy consumer requests to access, correct, and/or delete Covered Personal Information held by Service Provider.
4.2 Fulfillment of Consumer Requests – Within ten (10) calendar days of a written request from Company (email is sufficient), Service Provider shall, as applicable:
- Securely erase or destroy, or cause to be erased or destroyed, specific pieces of Company Personal Information, including any copies of such Company Personal Information maintained by Service Provider’s subcontractor(s) or sub-processor(s).
- Provide information requested by Company about Service Provider’s collection of the Company Personal Information, including, without limitation, the categories of Company Personal Information that were collected and categories of subcontractors or sub-processors to whom Service Provider has disclosed the Company Personal Information).
- Provide the specific pieces of Company Personal Information that Service Provider and/or one of its subcontractors or sub-processors has collected or otherwise obtained about the consumer on behalf of Company in a Portable Format.
- Modify, and direct its subcontractors or sub-processors to modify, specific pieces of Company Personal Information.
4.3 Referral of Direct Requests – Service Provider agrees to refer consumer requests submitted directly to Service Provider for Company Personal Information to Company.
5. SECURITY CONTROLS
5.1 Duty of Confidentiality – Service Provider, its employees, agents, subcontractors, and sub-processors are subject to a duty of confidentiality with respect to the Covered Personal Information.
5.2 Security Measures – Service Provider shall implement and maintain reasonable security measures, procedures, and practices appropriate to the nature of the Covered Personal Information to protect such Covered Personal Information from unauthorized access, destruction, use, modification, or disclosure (“Security Measures”). Such Security Measures shall meet or exceed applicable industry standards (e.g., the Payment Card Industry (PCI) Data Security Standard) and any obligations set forth in the Agreements or applicable law. At a minimum, Security Measures will include (i) storing Covered Personal Information on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Covered Personal Information from unauthorized disclosure.
5.3 Security Program – Service Provider shall implement a comprehensive written security program that includes industry-standard administrative, technical, and physical safeguards designed to ensure the confidentiality, security, and integrity of Covered Personal Information (“Security Program”). Upon Company’s reasonable request, Service Provider will provide Company with documentation that demonstrates its compliance with this Section.
5.4 Encryption – Service Provider will ensure that Covered Personal Information in Service Provider’s control is sufficiently protected against unauthorized access and use, including by appropriate encryption, tokenization, or other substantially similar safeguards.
5.5 Access Controls – Service Provider shall implement appropriate access controls restricting access to Covered Personal Information to only such employees, agents, subcontractors, and sub-processors as need to know the information in order to perform their obligations in furtherance of the Agreements.
5.6 Security Incident – Service Provider will inform Company within seventy-two (72) hours of Service Provider’s knowledge of any unauthorized access, destruction, use, modification, or disclosure (each, a “Security Incident”) of any Company Personal Information. Service Provider will provide Company with any information and cooperation reasonably requested by Company regarding such Security Incident. Service Provider shall not provide notice of such Security Incident without the prior written consent of Company unless required by applicable law.
6.1 Notification of Regulatory Inquiry – In the event that Service Provider receives any regulatory inquiry or correspondence regarding Company Personal Information in which Service Provider or Company is named (an “Inquiry”), Service Provider shall, to the extent not prohibited by applicable law or any regulatory authority:
- Notify Company of such Inquiry in writing within three (3) calendar days of receiving such Inquiry;
- Provide Company with all copies of documents and correspondence relating to the Inquiry without unduly delay after receipt or delivery of such documents or correspondence;
- Provide Company with a written certification at the conclusion of the Inquiry that action required by State Privacy Laws has been taken in response to such Inquiry;
- Not disclose any confidential information of Company or any affiliated party to the applicable authority without Company’s prior written consent.
6.2 Response to Inquiry – Service Provider shall take all other measures necessary to respond to or otherwise address the Inquiry adequately and in a timely manner.
7.1 Severability – If any provision of this DPA shall be found to be void by a court of law, such provision shall be deemed to be severable from the other provisions of this DPA, and the remainder of this DPA shall be given effect, as if the Parties had not included the severed provision.
7.2 Survival – All representations, warranties, and indemnities, shall survive the termination and/or expiration of this DPA and shall remain in full force and effect. All of a Party’s rights and privileges — to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the termination and/or expiration of this DPA — shall survive termination and shall be enforceable by that Party.
7.3 General – Except as expressly set forth herein, the terms of the Agreements shall remain unmodified and in full force and effect. In the event of a conflict between the terms of any of the Agreements and the terms of this DPA, the terms of this DPA shall control. Headers are for convenience and do not affect the interpretation of the terms of this DPA.
1475 N. Broadway, Suite 420
Walnut Creek, CA 94596