Master IO Terms and Conditions

SUNDAYSKY MASTER IO TERMS AND CONDITIONS

Last Updated: May 2, 2022

These Master IO Terms and Conditions (the “IO Terms“) shall apply to Insertion Orders (each, an “IO”) executed between SundaySky, Inc., a Delaware corporation with offices at 229 West 36th Street, 2nd Floor, New York, NY 10018 (“SundaySky“) and the customer identified in the IO (“Client“), with respect to SundaySky’s online video advertising services (the “Services“). These IO Terms are effective upon each party’s signing and returning a copy of the first IO to the other party.

1. Definitions and Interpretation.

1.1 “Campaign Cap” means (if applicable) the maximum spend under an IO.

1.2 “Client Content” means images, graphics, text, data, links, logos or other materials supplied by the Client to SundaySky and used by SundaySky for the Services, including for inclusion in the Videos.

1.3 “SundaySky IP” means the Services, the Video Platform, the Targeting Technology, the Video Templates and other technology, materials, creatives (such as the Videos) and information supplied, created or generated by SundaySky within the scope of the Service (but excluding Client Content).

1.4 “SundaySky Network” means the network of publishers on whose media the Videos will be displayed.

1.5 “Targeting Technology” means SundaySky’s proprietary technology used to target or re-target users based on their online behavior and display Videos to them.

1.6 “Videos” means the audiovisual video advertisements generated by the Video Platform promoting the products and/or services of Client.

1.7 “Video Platform” means SundaySky’s automated video experience platform, including and SundaySky’s algorithmic driven real-time video rendering engine.

1.9 “Video Templates” means SundaySky’s creative templates that are prepared for the specific generation of Videos from raw data.

2. Services; Set Up. 

SundaySky will provide Client with the Services identified in each IO for distribution of the Videos using the Targeting Technology and Video Platform. Client will implement and comply with the technical requirements and specifications needed to provide the Services (the “Requirements“), which include without limitation: (i) placing the code and tags supplied by SundaySky on the Client’s website and web pages; (ii) supplying SundaySky with the Client Content, including catalog files of the Client’s products and services, for SundaySky to include in the Videos; and (ii) any technical integration with the Client’s back-end systems, environment, reporting and analytics, databases and data feeds. Client acknowledges that meeting the dates in the IO require Client’s timely compliance with the Requirements. While SundaySky will use the Video Platform to provide the Services to Client, these IO Terms do not provide Client with direct access or use of the Video Platform which, if desired, must be obtained under separate agreement with SundaySky.

3. Videos. 

Client acknowledges and agrees that the Videos are displayed on websites (and on supported devices, such as smart phones and touch screen tablets) in accordance with the results of the Targeting Technology and that SundaySky has the sole discretion as to where (and how often) the Videos will be displayed within the SundaySky Network and how priority will be governed between Client and other clients. SundaySky reserves the right to (i) make changes to the Targeting Technology without notice, compensation or other liability to the Client; and (ii) cease display of the Videos for any reason.

4. Performance Report. 

SundaySky’s logging server(s) will measure the number of impressions, clicks and/or other indicators (as applicable) necessary for calculating the fees owed under each IO, and SundaySky will make such information available to Client.

5. Invoicing and Payment. 

SundaySky shall invoice Client on a monthly basis for the fees payable under each IO, which invoices Client will pay within 30 days after the invoice date. All payments to SundaySky shall be made in US Dollars and are exclusive of any sales, value-added or other applicable tax, which shall be payable at the time and in the manner required by law, solely by Client. SundaySky may charge interest on overdue amounts from the due date until the date of actual payment at the rate of 1.5% per month or the highest rate legally permissible (whichever is less). If Client wishes to dispute an invoice, it must so notify SundaySky in writing prior to the due date, after which Client will be deemed to accept the invoice and waives any claims to the contrary.

6. Intellectual Property. 

Except as otherwise expressly provided herein, each party remains the sole owner of the intellectual property rights it owns prior to the execution of the applicable IO. SundaySky (and/or its licensors) is and shall remain the sole and exclusive owner of the SundaySky IP and the anonymous data collected from the Videos as a result of the Service. Client is and shall remain the sole and exclusive owner of the Client Content. Client acknowledges that Videos may include third party content (such as music and images) provided by SundaySky, which content may not be shown or used other than as part of the Videos. Client acknowledges that SundaySky has the right to use and disclose aggregated data derived from Client’s use of the Service (i) as part of SundaySky’s business operations for as long as the use/disclosure of the aggregated data does not individually identify Client and/or users, (ii) to operate, manage, test, maintain and enhance the Service, SundaySky IP, and other SundaySky products, programs and/or services, and (iii) if required by court or administrative order, law, or regulation. Client grants SundaySky a non-exclusive, non-transferable, non-sublicensable license during the Term (defined below) to use, reproduce, modify, create derivative works of, publicly display, publicly perform, and represent all Client Content (i) on all media of the SundaySky Network for the purpose of performing the Services and generating the Videos (provided that Client has the opportunity to approve the Video Template), and (ii) on all documentation promoting the Service.

7. Warranties and Indemnity. 

Each party represents, warrants and covenants that it has the right, power and authority to enter into and perform its obligations under these IO Terms and each IO. Client represents and warrants that (i) it has the right to provide the Client Content to SundaySky for display and distribution without infringing any third party intellectual property or privacy rights; (ii) Client Content complies with all applicable laws and regulations in the relevant jurisdictions; and (iii) the Client Content does not include, or give access (e.g., via hyperlinks) to any website containing, material that is obscene, defamatory or contrary to any applicable law or regulation. THE SUNDAYSKY IP IS PROVIDED “AS IS”. EXCEPT AS STATED ABOVE, SUNDAYSKY MAKES NO REPRESENTATION, WARRANTY OR CONDITION, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER HEREIN, AND DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE SUNDAYSKY IP AND/OR THE SUNDAYSKY NETWORK. Each party shall defend, and hereby indemnifies and holds harmless the other party, its affiliates and their respective directors, officers, employees, representatives and agents from and against any damage, loss, liability, cost and expense (including reasonable attorneys’ fees), arising in connection with a third party claim, suit or proceeding arising as a result of or alleging any breach of the indemnifying party’s obligations under these IO Terms.

8. Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN CONNECTION WITH THESE IO TERMS AND/OR ANY IO, UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY) FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR LOSS OF USE, DATA, BUSINESS OR PROFITS, OR COSTS OF PROCURING SUBSTITUTE SERVICES, WHETHER OR NOT FORESEEABLE; OR (B) DAMAGES OR LOSSES THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS PAID AND/OR PAYABLE UNDER THE APPLICABLE IO. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO DAMAGES OR LOSSES THAT ARISE OUT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND/OR A PARY’S INDEMNITY OBLIGATIONS.

9. Personal Data. 

Client acknowledges and agrees that SundaySky may use Client Content to which it has access in connection the Services for statistical analysis, benchmarking and research purposes; provided, that such Client Content is compiled, anonymized and presented in aggregate form only, without identifying or being capable of identifying the source of the Client Content. Client shall include on its website(s) a privacy policy that discloses that third parties may place cookies on the browsers of visitors to its website(s) and send their own cookies to the visitors’ cookie file. These cookies will allow the Service to display Videos. Client may include a link to SundaySky’s Privacy Policy page that will include information for users on how to opt-out of being (re)targeted.

10. Term and Termination.

These IO Terms shall become effective as of the date of the signing of the first IO and shall expire (i) on the end date stated in the last IO to be in effect, or (ii) if applicable, on the date that the Campaign Cap stated in the last IO to be in effect is exhausted, whichever occurs first the “Term“). Each party may terminate an IO (a) as permitted in Section V of the IAB Standard Terms; or (b) if the other party becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law not dismissed within 60 days of commencement thereof. Upon expiration or termination (for any reason) of these IO Terms and/or an IO the applicable Services will immediately end, however any accrued rights or liabilities which either party may then have, or any clause which is expressly or by implication intended to continue in force after expiration or termination, will continue in effect.

11. Confidentiality. 

Each party will keep confidential and not use or disclose to any entity or person, except its employees and/or professional advisers who have a need to know for purposes of performing its obligations or exercising its rights under these IO Terms, any proprietary or confidential information of the other party disclosed pursuant to these IO Terms, that is marked as confidential or identified at the time of disclosure or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information that is publicly available through authorized disclosure, known by the receiving party at the time of disclosure as evidenced in writing, rightfully obtained by the receiving party from a third party who has the right to disclose it, or is required by law, government order or request to be disclosed (provided that the receiving party shall to the extent legally permitted, give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to obtain a protective order). Upon any termination of these IO Terms, each receiving party shall return to the other party all confidential information of the disclosing party and all copies thereof in the possession, custody or control of the receiving party, unless otherwise expressly provided in the IO. This Section shall survive the termination or expiration of these IO Terms for a period of five (5) years from the date of such termination or expiration.

12. Assignment. 

Neither Party may assign these IO Terms and/or any IO without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld, conditioned, or delayed, except that SundaySky may assign these IO Terms and/or any IO without Client’s consent to an affiliate or in the event of a reorganization, consolidation, merger, acquisition or sale or other disposition of substantially all of the assets or a transfer of more than fifty percent (50%) of the voting rights of SundaySky. Any purported assignment in violation of this Section will be null and void. These IO Terms will bind, benefit, and be enforceable by the parties and their respective successors and permitted assigns.

13. Miscellaneous. 

Neither party will be responsible for any failure or delay in its performance under these IO Terms due to causes beyond its reasonable control. These IO Terms shall be governed by the laws of the State of New York, without giving effect to principles of conflicts of law. The parties submit to the exclusive jurisdiction of the courts located in New York County, NY with respect to any dispute or matter arising out of or connected with these IO Terms, except that each party may seek injunctive relief in any court of competent jurisdiction. These IO Terms may be amended only by a written agreement executed by an authorized representative of each party. SundaySky shall seek permission from Client (not to be unreasonably withheld, conditioned or delayed) to issue any press release using Client’s name, logos, and/or trademarks. These IO Terms together with each IO and any terms referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all other written or oral prior understandings or agreements between the parties with respect to such subject matter. If any provision of these IO Terms and/or any IO shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or enforceability shall not affect the other provisions of these IO Terms or any IO, which shall remain in full force an effect. The waiver by either party of any default or breach of these IO Terms will not constitute a waiver of any other or subsequent default or breach. Any waiver granted under these IO Terms must be in writing and signed by the party waiving the default or breach. No terms or conditions other than these IO Terms shall be binding on SundaySky unless it agrees otherwise in writing. If a conflict or inconsistency exists between an IO and these IO Terms, these IO Terms shall prevail unless the IO expressly states otherwise. SundaySky reserves the right to modify these IO Terms at any time, effective as to any subsequently signed IO as soon as such modifications are made available online at Master IO Terms and Conditions. The modified IO Terms shall automatically apply to each IO or IO renewal executed after the modified IO Terms become effective.

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