Updated: January 1 2018
This Terms of Service (“Agreement”) describes the terms and conditions under which you (“Client,” “you,” or “your”) may access and use SourceKnowledge’s (Sokno Media Inc) Services.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING SOURCEKNOWLEDGE’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY(IES) (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF A CLIENT OR AS A RESELLER), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH THIRD PARTY(IES), AND THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL ALSO REFER TO SUCH THIRD PARTY(IES). SOURCEKNOWLEDGE MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE 30 DAYS AFTER NOTIFICATION WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH SOURCEKNOWLEDGE THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 15.
These SourceKnowledge Online Terms and Conditions (“SourceKnowledge Conditions”) govern all Insertion Orders (IO’s) entered into by Sokno Media, Inc., a Canadian corporation with offices at 1001 de Maisonneuve Ouest, Suite 1510; Montreal, Quebec; Canada; H3A 3C8 “Sokno”) and Customer.
WHEREAS, Sokno desires to provide, and Customer desires to utilize, Sokno’s Services for the fulfillment of placement of Advertising on Content Providers’ Target Sites.
NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and intending to be legally bound hereby, Sokno and Customer mutually agree as follows:
Capitalized terms not otherwise defined in the Agreement shall have the meanings ascribed to them in this Section 1.
“Ad Inventory” means any Media space and made available for purchase through the Services for the display of Advertising.
“Ad” or “Advertising” means any type of advertising material or content, in any format and however delivered, together with related code and other material used for the placement and display of such material or content on Media.
“Agreement” means, collectively: (i) these Sourceknowledge Conditions, (ii) any Insertion Order that incorporates these Sourceknowledge Conditions and is entered into by Customer and Sokno by any legally binding method of forming a contract, (iii) any exhibits, schedules or appendices attached thereto or incorporated by reference, and (iv) any amendments to any of the foregoing.
“Campaign Data” means performance and measurement data made available through the Platform that relates to Client’s Ad campaigns launched through the Services.
“Client Content” means all logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to SourceKnowledge for use with the Services.
“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by SourceKnowledge to Client.
“Feedback” means information regarding the features and performance of the Services and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Services.
“Buyer” means any party engaged in purchasing or facilitating the purchase of Ad Inventory through the Services, platform or service, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, or provider of goods or services advertised and representative thereof.
“Content Provider” shall have the meaning set forth in the Recitals above.
“Customer” means the entity or individual that is a party to the Agreement with Sokno. For clarity, “Customer” may be a Buyer, Seller, an entity accessing or using the Services in any other capacity, or an entity that assumes multiple such roles, as the conrequires.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the registration or grant of any such rights.
“Media” means websites, applications, mobile websites, mobile applications, television, print, billboards, and other media through or on which Advertising may be delivered.
“Offered Space” means space offered for the placement of Advertising to the Winning Bidder pursuant to the Services.
“Insertion Order” means an order form, or schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer and Sokno that incorporates these SourceKnowledge Conditions and that sets forth one or more Service(s) being provided by Sokno to Customer and specific terms applicable to each such Service.
“PII” means any information that would allow the identification of a particular natural person, or other information that is classified as “personally identifiable information” (or similar categorization), as determined in accordance with laws or regulations in any applicable jurisdiction.
“Platform” means the SourceKnowledge website, dashboard, and tools that Client has access to through the Services to create, launch, monitor, pause, and stop an Ad campaign
“Platform Policies” means, collectively: (i) any specifications, technical documentation, or integration requirements made accessible to Customer by Sokno in connection with the Technology; and (ii) requirements, prohibitions, and guidelines applicable to Customer’s integration with or use of the Services imposed by Sokno or a third party, as updated from time to time; in each case which may deal with or respond to, among other things, changes in laws or regulations, industry or technology developments, emerging risks, or evolution of the Services or Project Materials, and which are made available to Customer via the Services of the applicable service or otherwise made known to Customer.
“Prohibited Content” means any content or material that: (i) violates any applicable law, rule or regulation; (ii) promotes violence, discrimination, hatred, peer-to-peer applications, networks or sites, copyright protection circumvention, or unlawful subject matter or activities; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract, or legal right of any third party; or (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit.
“Project Materials” means the Service(s) and the Technology.
“Registered Bidder” means a person or entity that executes an Insertion Order Form with Sokno in order to use the Services to participate in Auctions and to place its Advertising in the Targeted Sites for which such Customer is the Winning Bidder.
“Seller” means any party engaged in the sale or facilitation of sale of Ad Inventory through the Sokno Services.
“Services” means each Sokno product, platform or service provided or made accessible to Customer in accordance with an Order Form.
“Target Sites” shall have the meaning set forth in the Recitals above.
“Targeting Data” means data or information available for Offered Space provided by Content Providers and received by Customer through its participation in an Auction (e.g., age, gender, zip code). Targeting Data does not include the device identifier.
“Technology” means any proprietary or confidential technology or materials of Sokno: (i) made accessible to Customer or (ii) made accessible to third parties and/or Affiliates by Customer or at Customer’s request in accordance with and as permitted by the terms of the Agreement, including any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”), used to effect or facilitate a provided Service.
“Term” shall have the meaning set forth in Section 5.
“User” means any natural person that is a visitor to, or other end-user of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone, or browser) used by such natural person or other end- user to visit, access, or use any such website, portal, device, application, or other online service.
“User Data” means information that is specific to or attributable to a User, including location, or device identifier, that (i) is received by Customer through its participation in the Services, and (ii) without associating it with other information, cannot be used to uniquely identify, contact, or precisely locate such User.
“Winning Bidder” means the Registered Bidder that participates in an Auction and is selected as the winning Registered Bidder by the Services according to the rules and procedures set forth in the Services, as in effect from time to time.
1. The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.
1.1 SourceKnowledge License Grant. Subject to Client’s payment and the terms set forth in this Agreement, SourceKnowledge grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Client during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Client’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the SourceKnowledge API).
1.2 Client License Grant. During the Term, Client grants SourceKnowledge a worldwide, royalty-free, non-transferable (except as necessary for SourceKnowledge to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, and publicly display, the Client Content in Ads on the Network or otherwise in connection with the Services and in promotional materials related to the Services. For Clients requesting SourceKnowledge’s dynamic creative advertisement services, Client acknowledges that SourceKnowledge will connect to Client’s website to pull and download images at the explicit direction of Client solely for the purpose of creating Ads.
1.3 Requirements. Client will comply with all requirements for use of the Services communicated by SourceKnowledge to Client via Documentation, and acknowledges that absent such compliance, SourceKnowledge may be unable to provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include: (i) including tags, pixels, script, or code supplied by SourceKnowledge on Client’s website; (ii) installing the SDK into Client’s mobile or tablet applications; (iii) supplying appropriate Client Content necessary for SourceKnowledge to provide the Service; and/or (iv) allowing access to data collected by Client’s mobile measurement partner. SourceKnowledge will have no liability to Client for such failure to provide the Services, if failure is a result of Client’s failure to comply with this section 2.4.
1.4 Modifications. SourceKnowledge will host the Services and may update the Services from time to time in accordance with this Agreement. If SourceKnowledge provides Services updates to Client that require action on Client’s part, Client will integrate the updates within 30 days. SourceKnowledge may make changes to the Services (including discontinuation of all or part of the Services) at any time. SourceKnowledge will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to SourceKnowledge.
1.5 Display of Ads. Client can request to work with SourceKnowledge (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to SourceKnowledge. Client acknowledges that SourceKnowledge cannot control where and how often Ads will be displayed within the Network. For instance, Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client. SourceKnowledge will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Client notifies SourceKnowledge in writing that Ads are being displayed in this manner, SourceKnowledge will use commercially reasonable efforts to prevent Ads from continuing to display in this manner. Client Content must comply with Documentation requirements or SourceKnowledge may be unable to provide the Services with respect to such Client Content.
1.6 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the SourceKnowledge Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Client agrees that SourceKnowledge may accept certain third party terms and conditions as agent on Client’s behalf where necessary for SourceKnowledge to perform Services requested by Client.
2. ACCOUNT AND CAMPAIGN SETUP
2.1 Account Set Up. Setting up an Account with SourceKnowledge is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify SourceKnowledge of any breach of security, misuse, or unauthorized use of its Account or credentials.
2.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set CPA goal and other details, and to review performance. Charges incurred because of changes made using Client’s account will be included in Client’s regular bill or invoice. In addition to SourceKnowledge’s optimization services and features, SourceKnowledge may offer Managed Account Services to Client. SourceKnowledge will use commercially reasonable efforts to comply with the budget specified by Client.
2.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by SourceKnowledge, CPA or revenue share will be based on either a mutually agreed to third party tracking software or SourceKnowledge’s measurements and tracking through its own servers using the number of acquisition targets, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
2.4 Auto-Postpay Accounts. For recurring payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize SourceKnowledge to charge recurring amounts due weekly using the valid payment details provided by You. SourceKnowledge reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred.
2.5 Insertion Order Accounts. SourceKnowledge may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. SourceKnowledge reserves the right to request a prepayment from Client at any time. SourceKnowledge will send Client a monthly invoice via email reflecting the amount owed by Client to SourceKnowledge. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. SourceKnowledge may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client will reimburse SourceKnowledge for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.
2.6 General Payment Terms. You agree that you have all necessary right, power, and authority to authorize each such payment. For certain payment methods, the issuer of your payment method may charge you a foreign transaction fee or other charges. Check with your payment method service provider for details. If you develop credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or SourceKnowledge otherwise designates you as a credit risk, SourceKnowledge reserves the right to require prepayment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that SourceKnowledge will have no obligation to provide the Services if sufficient funds are not available at the time your payment is submitted, and we reserve the right to suspend your campaigns due to failed payments or insufficient balance.
2.7 Currency and Taxes. All payments to SourceKnowledge will be made in United States Dollars or the Canadian Dollar, unless otherwise agreed to in an IO or offered through the Platform. Payments are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon SourceKnowledge’s net income.
OBLIGATIONS OF THE PARTIES
Sokno will maintain throughout the Term all software codes and tags necessary for Customer to serve the Advertising in accordance with the Services. Sokno is the sole and exclusive owner of all right, title and interest in and to the Technology. Customer shall not use the Technology except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. Sokno shall make the Services accessible to Customer pursuant to the Agreement and, unless otherwise stated in the applicable Insertion Order Form, provide Customer with access to applicable Project Materials. Customer acknowledges that Sokno may utilize one or more of its Affiliates, as appropriate, to fulfill its obligations under this Agreement.
(a) Registration Obligations. Customer shall: (a) provide true, accurate, current and complete information as prompted by the Services or otherwise requested by Sokno in establishing an account for accessing the Service (such information, the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. In order to provide the Service, Sokno may transfer certain Registration Data, or may process certain Registration Data, in the United States, and Canada, or other locations, and Customer consents to any such transfer or processing.
(b) Account, Password and Security. Customer must establish an account for accessing the Services including a username and password to access such account (“Credentials”). Customer is responsible for all activities that occur under its Credentials and account. Customer agrees to promptly notify Sokno of any unauthorized use of its Credentials or access to the Services or any other suspected breach of security.
(c) Platform Policies. Customer shall conform to the Platform Policies.
(d) Prohibited Activities. Customer shall not do any of the following (each a “Prohibited Activity”): (i) provide or deliver or perpetuate through the Services any Malicious Code, via Media or Ads purchased or sold or otherwise; (ii) generate impressions, clicks, displays, views, conversions or any other actions that are tracked and may serve as a basis for payment or analysis (collectively “Reported Actions”) with respect to any Ad or Media purchased, sold, delivered, or served via the Services through any Invalid Means, or otherwise deploy or facilitate Invalid Means in its use of the Services. In addition, if Customer uses a third party’s technology or materials in connection with Customer’s activities under the Agreement, Customer will not violate any agreements, conditions or terms of usage imposed by such third party on Customer related to the use of such third party’s technology or materials.
(a) Each party shall (i) comply with all applicable laws, rules and regulations in performing its respective obligations and exercising its rights under the Agreement, including with respect to consumer protection and privacy, and (ii) use commercially reasonable efforts and cooperate with the other to detect, limit, prevent, and prohibit Prohibited Activities by third parties.
United States-Directed Kids’ Sites.
Any Customer Media (1) directed to children under the age of 13 who reside in the United States or any territory thereof; or (2) that collect information from users known by the operator thereof to be under the age of 13 who reside in the United States or any territory thereof (“Kids’ Sites”) must be identified as such by the Seller making Ad Inventory thereon available through the Services, using the Sokno interface functionality provided for this purpose, if available, as directed in the Platform Policies or otherwise by Sokno in writing (including email). Customer’s use of the Services will be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”). Without limiting the foregoing, Customer may not, except to the extent permitted by applicable law, (i) create profiles of users or visitors of Kids’ Sites, (ii) purchase, sell, place or facilitate the placement of behaviorally targeted Ads on Kids’ Sites, or (iii) collect personal information (as defined by COPPA) about users or visitors of Kids’ Sites. Sokno undertakes no obligation to monitor COPPA compliance by Buyers or Sellers. Nothing in this Section shall be construed as limiting Customer’s obligation to comply with any other applicable laws, rules or regulations related to minors.
Right to Access and Restrictions.
Customer may access and use the Project Materials solely for the purposes of use and performance of obligations under the Agreement, and solely in accordance with applicable Platform Policies. Customer shall not: (a) resell, license, lease, time-share or otherwise transfer or distribute any of the Project Materials; (b) reverse engineer, decompile or dissemble the Project Materials (except to the extent expressly permitted by applicable law); (c) modify, copy or create derivative works of the Project Materials, except that Customer may modify and create derivative works of a Sokno SDK to the extent necessary to achieve the objectives contemplated by the applicable Order Form (e.g., serving an Ad in a mobile application); (d) use the Project Materials to build a competitive product or service; or (e) authorize or permit any third-party to do any of the acts described in Sections 3.1(a) through (d). Customer may not transfer or provide access to any Project Materials to any third party except that Customer may transfer, provide access or request Sokno to provide access, to the Project Materials to Customer’s authorized representatives to facilitate Customer’s use of the Service, provided that (i) Customer is responsible for any acts or omissions of such authorized representatives, and (ii) Customer shall cause such authorized representatives to handle such Project Materials in accordance with same requirements and restrictions applicable to Customer. Sokno reserves all rights not expressly granted hereunder.
To the extent Customer chooses to buy or sell Ad Inventory through the Service on a non-blind basis, Customer hereby grants to Sokno a non-exclusive, non-transferable (other than to a successor in interest in connection with a merger, reorganization or sale of all or substantially all assets or equity) right and license to use, reproduce and display Customer’s name, logo, service marks, trademarks and related brand features (“Marks”) on or within the user interface for the Service, including as made available to third parties (including but not limited to Buyers and/or their representatives). Sokno’s use of Customer’s Marks will be in compliance with any reasonable written usage guidelines provided to Sokno by Customer.
As between the parties, Sokno shall own and retain all right, title and interest in and to the Project Materials and Sokno’s Confidential Information, together with all Intellectual Property Rights therein and thereto. As between the parties, Customer shall own and retain all right, title and interest in and to: (i) Customer’s Media (exclusive of any Ads placed thereon) to the extent Customer is acting as a Seller, (ii) the Ads, to the extent Customer is acting as a Buyer, (iii) Customer’s Marks, (iv) Customer’s Confidential Information, and (v) Customer’s Intellectual Property Rights therein and thereto. Customer may, in its sole discretion, provide Sokno with suggestions or other feedback regarding any Project Materials, which Sokno may freely incorporate into the Project Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to Customer.
(a) As used herein, “Confidential Information” means all material or information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Confidential Information includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets and business processes. The terms and conditions (including pricing) of each Order Form are Confidential Information of each party. Rubicon Project Materials are Confidential Information of Rubicon Project. However, notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.
(b) Receiving Party shall not use Confidential Information of Disclosing Party for any purpose other than to perform Receiving Party’s obligations or exercise its rights under the Agreement. In addition, Receiving Party shall not disclose Confidential Information of Disclosing Party to any third party, except with Disclosing Party’s prior written consent or as otherwise required by law or legal process, and except that Receiving Party may disclose the Confidential Information of the Disclosing Party to Receiving Party’s employees, consultants or other representatives who have a bona fide need to know such Confidential Information to support the Receiving Party’s exercise of its rights or performance of its obligations under the Agreement and who are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those set forth herein, provided that Receiving Party shall be responsible and liable for failure by any party to which it discloses Disclosing Party’s Confidential Information to treat that information in accordance with Receiving Party’s obligations. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
(c) If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 4.1, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
(d) Upon termination or expiration of the Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
(b) Consumer Data. Neither party will pass or provide to the other party any PII. To the extent that PII or any other data about end users are collected, used, transmitted, or processed by or on behalf of Customer or a party on behalf of which Customer is directly or indirectly buying or selling Ad Inventory through the Service, Customer agrees that all appropriate consents and waivers have been or will be obtained from such end user, including consents necessary to collect information about individual end users through the use of technologies, such as cookies, located on the end user’s device. Notwithstanding the above, Sokno may use Targeting Data, that is not PII, for the purposes of optimizing Customer’s campaign.
TERM AND TERMINATION
The Agreement will continue in effect until terminated as permitted hereunder. Each Account or Insertion Order Form has the term specified therein. Termination of any individual Account shall not affect any other Account in effect between the parties at the time of such termination. Either party may terminate these Master Terms and Conditions for any or no reason upon thirty (30) days’ written notice to the other party if no Order Forms are in effect between the parties at such time.
(a) Sokno may limit and/or suspend Customer’s access to and use of the Service (including ceasing purchase, sale, delivery or serving of Ads or Ad Inventory) if Sokno has a reasonable basis to suspect that: (i) Customer’s Registration Data is untrue, inaccurate, not current or incomplete, (ii) Customer is engaging in a Prohibited Activity or violating any applicable law or regulation; (iii) Customer’s Media or Ads contain Prohibited Content; or (iv) Customer’s continued use of the Project Materials is likely to damage or cause imminent harm or risk to Sokno, the Service, or other customers or end users of Media or their data, devices, or systems. Sokno will use commercially reasonable efforts to provide Customer with notice prior to any limitation or suspension, but in any event will notify Customer promptly thereafter. If the event giving rise to the limitation or suspension is not cured within five(5) days or if the Customer has engaged in a Prohibited Activity (which will be deemed incapable of cure), Sokno may terminate the Agreement, any Order Form or any Service in whole or in part upon written notice (email acceptable).
(b) In addition to Section 5.2(a), if either party breaches the Agreement and/or any Order Form in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach in reasonable detail, the other party may terminate this Agreement and all Order Forms, or alternatively the Order Form that is breached.
Effect of Termination
Upon expiration or termination of the Agreement for any reason: (a) all access rights and/or licenses granted herein shall immediately terminate; (b) Customer will cease all use of the Project Materials and, if Customer has been provided with Technology, Customer will remove any Technology from Customer’s Media within two (2) business days of such expiration or termination; and (c) the following will survive: (i) any provisions specified by their terms to survive; and (ii) provisions of the Agreement that, by their nature, are applicable to matters at issue between the parties after termination of the Agreement, such as accrued unpaid payment obligations, indemnities, confidentiality, proprietary rights, legal and regulatory compliance, and obligations with respect to third parties. Termination of the Agreement by either party will not act as a waiver of any breach of the Agreement and will not act as a release of liability under the Agreement. In all cases, the running of any Customer campaigns or activity under the Agreement after termination is in Sokno’s sole discretion.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
Mutual Representations and Warranties
Customer and Sokno each represents and warrants to the other that: (a) it has the full corporate right, power and authority to enter into the Agreement and to exercise its rights and perform its obligations; and, (b) its execution and delivery of the Agreement, and the performance of its obligations and duties in connection therewith, do not and will not violate any agreement to which it is bound.
Except for the express representations and warranties stated herein, neither party makes, and each party expressly disclaims, all representations and warranties, express, implied, statutory or otherwise, with respect to the subject matter of the agreement, including without limitation implied warranties of access, merchantability, noninfringement, fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. without limiting the generality of the above, sokno makes no representation or warranty as to any benefit or revenues that customer (or customer’s customers or users) will obtain from its use of the service, and sokno does not represent or warrant that the service will be always available or error-free.
Customer shall indemnify, defend and hold harmless Sokno, its permitted successors and assigns, and their respective agents, officers, directors and employees (collectively, “Sokno Indemnified Parties”) from and against any claims, suits, legal, regulatory or investigatory proceedings (“Claims”) brought against any Sokno Indemnified Party by a third party and any all judgments, losses, damages, settlements, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and notice costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with: (a) Customer’s breach of the Agreement or Customer’s obligations to any third party; (b) a claim that Customer’s Marks, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party; (c) Customer’s provision or delivery of any Prohibited Content through the Service or the inclusion of any Prohibited Content in any Media or Ads purchased, placed, or sold by Customer in connection with this Agreement; or (d) the breach or inaccuracy of any representation or warranty of Customer in the Agreement. The acts described in items (a)–(d) above referred to herein as “Customer Indemnifiable Acts.”
Sokno shall indemnify, defend and hold harmless Customer, its successors and assigns, and their respective agents, officers, director and employees (“Customer Indemnified Parties) from and against any Claim brought against any Customer Indemnified Party by a third party and any Losses arising as a result of any such Claim, in each case as a result of or in connection with: (a) Sokno’s breach of the Agreement or Sokno’s obligations to any third party; or (b) a claim that the Project Materials, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party. However, Sokno shall have no liability for any infringement Claim under this Section 7.2 to the extent such Claim results from: (i) modifications to the Project Materials by a Customer Indemnified Party, or (ii) use or combination of any Project Materials with any other item not provided by Sokno; in each case not within the scope of normal intended use of the Project Materials and without the written consent of Sokno. In the event a Claim under Section 7.2(b) is made or in Sokno’s reasonable opinion is likely to be made, Sokno may, at its sole option and expense: (1) procure for Customer the right to continue using the Project Materials, or (2) replace or modify the Project Materials to be non-infringing without material decrease in functionality. If the foregoing options are not reasonably practicable, Sokno may terminate the Agreement. This Section 7.2 represents Sokno’s entire obligation and Customer’s exclusive remedy regarding any third party intellectual property claims.
The indemnification obligations above are contingent on the indemnified party: (a) promptly notifying the indemnifying party of any Claim (provided that the indemnified party’s failure to provide such prompt notice will not release indemnifying party from its indemnification obligations but the indemnifying party may recover from the indemnified party Losses to the extent resulting from the indemnified party’s failure to provide prompt notice), (b) providing the indemnifying party with any reasonable information and assistance needed to defend or settle the Claim (provided the indemnifying party bears any out of pocket expenses incurred by indemnified party in providing such assistance or information), and (c) allowing the indemnifying party the right to have sole control of the investigation, defense and settlement of the Claim, provided that indemnifying party will not, without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed, enter into any settlement of a Claim that: (i) imposes a monetary obligation on indemnified party that is not covered by the indemnification, (ii) imposes a material, non-monetary obligation on indemnified party or materially increases the indemnified party’s costs or risk, (iii) does not include an unconditional release of indemnified party, or (iv) admits liability on the part of the indemnified party. The indemnified party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing.
LIMITATION OF LIABILITY
SUBJECT TO SECTION 8.2: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF THE AGREEMENT EXCEED $250,000. THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 8.1 SHALL NOT APPLY TO: (A) A BREACH OF SECTION 4.1 (CONFIDENTIALITY); (B) A CLAIM FOR INDEMNIFICATION UNDER SECTION 7; (C) THE GROSS NEGLIGENCE; WILLFUL OR INTENTIONAL MISCONDUCT, OR DISHONEST, FRAUDULENT, CRIMINAL OR MALICIOUS CONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES; OR (D) AMOUNTS PAYABLE TO RUBICON PROJECT UNDER AN ORDER FORM.
Other customers. To the extent that another customer of Sokno incurs Losses as a result of any Customer Indemnifiable Act, such other customer may recover from Customer directly for such Losses and will be deemed a third party beneficiary of this Section 9.
Customer may not assign the Agreement or any Order Form, including without limitation, by operation of law or merger, without Sokno’s prior written approval, and any attempt to assign the Agreement or any Order Form without such prior written approval is void.
Governing Law; Venue
The Agreement will be governed and interpreted in accordance with the laws of the Quebec, Canada without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Montreal, Quebec. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
Non-Exclusive Relationship; No Minimums
Except as otherwise expressly agreed in this Agreement, this Agreement is non-exclusive and either party may engage in similar or other relationships, agreements or arrangements with any other party. Except as agreed in an Order Form, neither party promises any level of business or outcomes to the other.
Independent Relationship of the Parties
The relationship between Customer and Sokno (and its personnel or agents) in connection with the Agreement is at all times that of an independent contractor and neither party is an employee, partner, agent, trustee or joint venturer of, for, or with the other. Neither party shall owe any fiduciary or, except to the extent otherwise provided herein or under applicable law, other duties to the other.
Headings and captions are for convenience only and do not affect the meaning or interpretation of the Agreement. Ambiguities, inconsistencies or conflicts in the Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Agreement is entered into and common practice in the industry. The term “including” or “includes” means “including/includes without limitation.” This Agreement shall not be construed against any party by reason of its drafting, preparation or means of acceptance.
During the term of the Agreement Sokno may use Customer’s name and logo in general promotional and informational materials and publicly describe the general nature of the parties’ relationship (without revealing specific contract terms). Except as permitted above or in any Insertion Order Form, neither party shall use the name of the other party in publicity, advertising or other public materials (unless required by applicable law or regulation) without the prior written consent of the other party.
All notices under the Agreement must be made in writing. Notices to Customer may be made in the UI of the Service, or by e-mail to the address listed in your Account contact information, express courier, or certified mail. Notices to Sokno may be made by e-mail to email@example.com, express courier, or certified mail. Notice will be effective on receipt.
Advice of Counsel
Each party acknowledges that such party has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and provisions of this agreement.
Sokno will provide Customer with written notice via email or the applicable Service user interface of any material changes to the Agreement or any Platform Policy applicable to Customer (“Modifications”). If Customer determines in its reasonable discretion that a Modification will have a material, adverse effect on Customer, then for a period of ten (10) business days after the date of notice by Sokno (the “Termination Window”), Customer may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to Sokno. By continuing to access or use the Services or any Technology after such Termination Window, Customer agrees to be bound by such Modification.
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings and communications, oral or written, between the parties related to such subject matter. In case of any dispute between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’ and other fees and costs from the non-prevailing party, provided that the court or arbitrator may eliminate or reduce such recovery on grounds that it is unreasonable or disproportionate to the harm suffered or recovery achieved. The Agreement shall prevail over any additional or conflicting terms that appear in any purchase order, invoice or other document furnished by Customer to Sokno. In the event of any conflict or inconsistency between provisions or components of the Agreement, each as may be amended, the Order Form(s) shall take precedence over these Sourceknowledge Conditions. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. Except for payment obligations, no party is liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control. Any provision of the Agreement that is held by a court of competent jurisdiction to be unenforceable shall be modified to the minimum extent necessary to make such provision enforceable and to best preserve the parties’ intent, provided that if such modification would materially alter the effect of the provision then the provision shall be considered void, and the remaining provisions of the Agreement shall be enforceable in accordance with their terms. Except as otherwise expressly set forth in Section 9, the Agreement does not create any right or cause of action for any third party. This Agreement may be signed in counterparts, each of which shall be deemed an original and together will constitute the Agreement. Pursuant to any applicable laws, rules or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS. Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.