1. Provision of Access. Subject to the terms and conditions contained in this Agreement, EDO hereby grants to Subscriber and its Authorized Users a non-exclusive, non-transferable right to access the features and functions of the applicable EDO Offering set forth on the Order Form during the Term set forth on the Order Form for the number of Authorized Users set forth on the Order Form. On or as soon as reasonably practicable after the Effective Date, EDO shall provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the EDO Offering ordered under this Agreement. Subscriber and any Authorized User may only use the EDO Offering in accordance with the Access Protocols.

 

2. Usage Restrictions. Subscriber will not (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the EDO Offering are compiled or interpreted, and Subscriber acknowledges that nothing in this Agreement will be construed to grant Subscriber any right to obtain or use such code; (b) publish or otherwise provide third parties access to the raw data underlying any EDO Offering (apart from Subscriber Data); (c) allow third parties other than Authorized Users to gain access to the EDO Offering or EDO Data; (d) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) interfere with or disrupt the integrity or performance of the EDO Offering or the data contained therein; or (f) attempt to gain unauthorized access to the EDO Offerings computer systems or networks related to the EDO Offerings. Subscriber will ensure that its use of the EDO Offering complies with all applicable laws, statutes, regulations or rules. Any internal use or dissemination of the EDO Data shall include the following identifier “Source: Entertainment Data Oracle” or another similar identifier reasonably specified by EDO.

 

(a) Ownership and Use of Subscriber Data. Subscriber retains all right, title and interest in and to the Subscriber Data, and EDO acknowledges that it neither owns nor acquires any additional rights in and to the Subscriber Data not expressly granted by this Agreement. EDO further acknowledges that Subscriber retains the right to use the Subscriber Data for any purpose in Subscriber’s sole discretion. Subject to the foregoing, Subscriber hereby grants to EDO a non-exclusive, non-transferable right and license to use the Subscriber Data during the Term for the limited purposes of performing EDO’s obligations under this Agreement. Subscriber further grants EDO the right to create anonymous benchmarks and derivative insights based on the Subscriber Data (the “Insights”) that it may use as part of the EDO Offerings for Subscriber and other customers of EDO; provided, however, that such Insights do not disclose any Subscriber Confidential Information or otherwise disclose the identity of Subscriber.

(b) Ownership of EDO Offering and EDO Data. Subject to the rights granted in this Agreement, EDO retains all right, title and interest in and to the EDO Offerings, EDO Data and the Insights, and Subscriber acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement or any licenses to the software used to provide the EDO Offerings. Subscriber further acknowledges that EDO retains the right to use the foregoing for any purpose in EDO’s sole discretion. The Parties acknowledge that all EDO Data is “EDO Confidential Information” and neither Subscriber nor any Authorized User shall have the right to disclose, copy, disseminate, distribute, publish, display or sublicense all or any portion of such EDO Data without EDO’s prior written consent in each instance.

 

4. Support. Subject to the terms and conditions of this Agreement, EDO may provide technical assistance for the evaluation and use of the EDO Offering during EDO’s ordinary and customary business hours in accordance with its standard policies and procedures. Subscriber shall provide such information and/or access to Subscriber resources as EDO may reasonably require in order to provide technical assistance under this Agreement.

 

(a) Collection of Subscriber Data. Subscriber shall be responsible for obtaining any and all consents necessary to allow for the collection of Subscriber Data under this Agreement and the processing of the Subscriber Data by EDO. Subscriber hereby represents and warrants that the collection and transmission of the Subscriber Data to EDO as contemplated by this Agreement as well as the processing of such Subscriber Data in conformance with the terms of this Agreement complies in all respects with all applicable laws, rules and regulations that apply to the Subscriber and its employees.

(b) Subscriber Responsibility for Data. Subscriber and its Authorized Users shall have access to the Subscriber Data and shall be responsible for all changes to and/or deletions of Subscriber Data. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Subscriber Data. Subscriber acknowledges and agrees that, except as otherwise agreed between the Parties to this Agreement or in a separate written agreement, EDO will have no obligation to back-up Subscriber Data, nor will EDO have any liability for any loss or corruption of Subscriber Data, nor will EDO have any obligation under this Agreement to retain any Subscriber Data after the expiration or termination of the Term.

(c) Feedback. Subscriber agrees to use the EDO Offering and to promptly report problems to EDO whenever the EDO Offering does not perform in accordance with the documentation provided by EDO. Subscriber may also provide to EDO comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the EDO Offering (collectively, the “Feedback”). Subscriber agrees that EDO has the right to use the Feedback at its sole discretion on an unlimited basis, including without limitation incorporating all or some of the Feedback into the products of EDO, and hereby assigns to EDO all right, title, and interest in and to the Feedback (excluding Subscriber Data).

 

(a) Fees. In consideration for the access rights granted to Subscriber and the SaaS services performed by EDO under this Agreement, Subscriber will pay to EDO, without offset or deduction, all Fees set forth on the Order Form (if any). All fees will be billed and paid in U.S. dollars. All fees will be due within thirty (30) days of Subscriber’s receipt of the invoice.

(b) Taxes. Fees invoiced hereunder do not and will not include any taxes levied by or due to any duly authorized taxing authority. Subscriber will pay all applicable taxes and other government charges, if any, however designated, derived from or imposed on the transactions contemplated hereby, including sales, value-added, use, transfer, withholding, privilege, excise and other taxes and duties, except for taxes based on EDO’s income.

 

(a) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EDO OFFERING, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY EDO ARE PROVIDED “AS IS,” AND EDO DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. EDO DOES NOT WARRANT THAT THE EDO OFFERING OR ANY OTHER SERVICES PROVIDED BY EDO WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

(b) Limitation of Liability. EXCEPT FOR LIABILITY RESULTING FROM BREACH OF SECTION 8 (CONFIDENTIALITY) AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR LOSS OF PROFITS OR REVENUES ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, AND, (II) AS BETWEEN THE PARTIES, NEITHER PARTY’S LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER UNDER THE THIS AGREEMENT.

 

(a) Treatment of Confidential Information. Each Party hereby acknowledges that during the performance of this Agreement it may learn, receive or otherwise have access to Confidential Information (as defined herein) of the other Party. Each Party shall exercise the same degree of care to keep confidential any Confidential Information of the other Party as such Party exercises to keep confidential such Party’s own information of like nature, but in no event less than a reasonable standard of care, and each Party and its affiliates and its and their respective employees, independent contractors, representatives and other agents shall not disclose, use, publish or otherwise reveal, directly or indirectly through any third party, any Confidential Information of the other Party to any third party or to any of such Party’s employees or agents that do not have a need to know such Confidential Information for the purpose of exercising such Party’s rights or performing such Party’s obligations under this Agreement.

(b) Exceptions to Confidential Information. Confidential Information shall not include information that (a) is now generally known or available or which, hereafter through no act or failure to act on the part of the receiving Party, becomes generally known or available; (b) is rightfully known to the receiving Party on a non-confidential basis at the time of receiving such information; (c) is furnished to the receiving Party by a third party without restriction on disclosure and without the receiving Party having actual notice or reason to know that the third party lacks authority to so furnish the information; or (d) is independently developed by the receiving Party without reference to the Confidential Information of the other Party. A receiving Party may disclose any Confidential Information that is required to be disclosed by operation of law or by an instrumentality of the government, including any court, tribunal or administrative agency; provided that, to the extent permitted under applicable law, the receiving Party shall notify the other Party prior to such disclosure (and if reasonably requested by the other Party (and at the other Party’s cost) shall assist the Party in seeking to obtain a protective order or to otherwise minimize the extent of such disclosure).

 

(a) Term. The term of this Agreement will commence on the Effective Date and will continue for the Term set forth on the Order Form, unless earlier terminated in accordance with this Section.

(b) Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.

(c) Suspension of Access. EDO may suspend access to any or all of the services, including the EDO Offering, in the event the Fee is not received by EDO within ten (10) days after it was due.

(d) Effect of Termination. Upon any termination of this Agreement: (i) Subscriber will immediately discontinue all use of the services, the documentation, and any EDO Confidential Information; (ii) Subscriber will delete any EDO Confidential Information from Subscriber’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) EDO will delete any Subscriber Confidential Information and Subscriber Data from EDO’s computer storage or any other media including, but not limited to, online and off-line libraries; (iv) Subscriber will return to EDO or, at EDO’s option, destroy, all copies of the Documentation and any EDO Confidential Information then in Subscriber’s possession; and (v) Subscriber will promptly pay to EDO all amounts due and payable hereunder. provisions of Sections 7, 8, 9(d) will survive the termination of this Agreement.

 

(a) Assignment. Neither Party may assign or otherwise transfer this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party; provided, however, that either Party may assign or otherwise transfer this Agreement, upon notice to the other Party but without the other Party’s consent to an entity that purchases all or substantially all of such Party’s business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section shall be null and void.

(b) Contractor Relationship. EDO and its employees and agents shall provide access to the EDO Offerings under this Agreement as independent contractors. Nothing in this Agreement is intended or shall be construed to create a partnership, joint venture, or employer-employee relationship between Subscriber and EDO or any of its employees or agents.

(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to the principles of conflict of law.

(d) Severability. If any provision in this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable to any extent, such finding shall not affect the other provisions of this Agreement and the invalid or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable law.

(e) Complete Agreement. This Agreement, together with the Order Form and the Registration Page, represents the entire agreement between Subscriber and EDO with respect to matters covered herein and supersedes all previous representations, proposals, or agreements, whether written or oral. No modification or amendment of any of the terms of this Agreement shall have effect unless in writing and signed by authorized representatives of EDO and Subscriber.

(f) Force Majeure. Except with respect to Subscriber’s payment obligations and each Party’s obligations under Section 8 (Confidentiality), neither Party shall be liable for failure to perform obligations under this Agreement if the failure results from an act of God, the act of a national, federal, state or local government authority, fire, explosion, accident, pandemic, epidemic, industrial dispute, or any other catastrophic or other similar event beyond such Party’s reasonable control (collectively, “Force Majeure”). If EDO is affected by an event of Force Majeure, upon giving prompt notice to Subscriber, EDO shall be excused from performance hereunder on a day to day basis to the extent of the prevention, restriction or interference resulting from such Force Majeure.

(g) Notices. Any notice required to be given by either Party under this Agreement shall be in writing and sent to the address of the other Party as set forth above (or such other address as such Party may specify in a notice to the other Party pursuant to this Section). Such notice shall be deemed to have been given upon (i) actual receipt, (ii) the expiration of the fifth business day after being deposited in the United States mails, postage prepaid, or (iii) the next business day following deposit with an internationally recognized overnight delivery service (e.g., Federal Express).

(h) No Waiver. No waiver or modification of any right or remedy under this Agreement or of any provision hereof shall be effective unless it is stated in writing and signed by the Parties and no effective waiver of any right, remedy or provision of this Agreement shall be deemed a waiver of any other, whether of a like or different character.

(i) Counterparts. This Agreement may be executed in any number of counterparts and exchanged by electronic communication, such execution to be considered an original for all purposes, and all of which together shall constitute one and the same instrument, notwithstanding that the Parties may not both be signatories to the original or the same counterpart.

 

11. Definitions. Certain capitalized terms, not defined above, have the meanings set forth below.

“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the EDO Offering.

“Authorized User” means any individual who is an employee of Subscriber that has been provided access the EDO Offering pursuant to Subscriber’s rights under this Agreement. Subscriber may add an individual that has entered into an independent contractor agreement with Subscriber (or an employee of an entity that has entered into such an agreement) to perform services for Subscriber as an Authorized User, provided, that: (a) the Subscriber is responsible for all actions of the contractor and such contractor’s compliance with the terms of this Agreement; and (b) the contractor is not a competitor of EDO.

“Confidential Information” means any confidential or proprietary information or data of a Party or its affiliates (or its or their customers or licensees or third-party contractors), whether oral or in writing, that are designated as confidential or would reasonably be understood to be confidential and proprietary, including technical, marketing, sales, operating, performance, cost, know-how, research and development, business and process information, computer programming techniques, protected health information, nonpublic personal financial information, personal data, and all record-bearing media containing or disclosing such information or techniques.

“EDO Data” means any data that is made available to Subscriber through an EDO Offering apart from the Subscriber Data, including third party data collected or made available by EDO and Insights.

“EDO Offering” means the specific data or analytic as set forth on the Order Form, including but not limited to Ad EnGage CI (Competitive Intelligence), Ad EnGage SE (Search Engagement), and Ad EnGage Streaming, and Ad EnGage Convergent.

“Fee” means the specific fees to be charged for the EDO Offering as set forth on the Order Form.

“Order Form” means the order form which sets forth the Term and Fee.

“Term” means the period of time commencing upon the Effective Date and continuing for the duration or until the date specified on the Order Form.

“Registration Page” means the webpage(s) which allows Subscribers to register for use of the EDO Offering and agree to this Agreement.

“Subscriber Data” means the data and content provided by Subscriber through the EDO Offerings.