These Customer Terms (“Terms”) are made between iOPEX TECHNOLOGIES INC. (“iMEDIABAY”) and customer (“Customer”). iMEDIABAY provides ad copy optimization solution services as specified in an order form executed by iMEDIABAY and Customer (“Order Form”) (collectively “Services”), and iMEDIABAY has agreed to provide such Services to Customer subject to the terms and conditions of these Customer Terms (“Agreement”). Any reference to Terms herein shall also include the Order Form.
1. Scope, Services and Fees: iMEDIABAY provides an online portal and website located at www.imediabay.com made up of iMEDIABAY proprietary technology (“iMEDIABAY Platform”) for the provision of Services, which may include ad copy services (referred to as “SEM Services”) and/or creative services (referred to as “Image Services”). iMEDIABAY shall supply the Services specified in an order form subject to these Terms. Customer agrees that iMEDIABAY has the right to utilize employees or the services of any number of contractors or agents to complete the Services with the understanding that these Terms shall apply to such parties. Customer shall pay iMEDIABAY all charges (the “Fees”) specified in an order form, and on the payment terms set out therein. If Customer is late in paying any Fees, iMEDIABAY may, in its discretion, charge interest after the due date on all unpaid amounts at a rate of 1.5% starting on the payment due date until payment is made in full.
2. iMEDIABAY Platform, Customer Content, & Licenses
a. Intellectual Property: means all patents, copyrights (including moral rights), trademarks, trade secrets, and other proprietary rights including the right of publicity and privacy rights.
b. Access to Platform: Subject to all the terms and conditions of these Customer Terms, during any period for which Customer has purchased a subscription to the iMEDIABAY Platform, Customer may access and use the iMEDIABAY Platform solely in connection with Services as defined in the applicable Order Form and in accordance with any scope of use restrictions designated in these Terms or applicable Order Form. Customer may permit its employees and contractors to access and use the Services solely on Customer’s behalf (“Authorized Users”) and provided that Customer is responsible for ensuring that its Authorized Users comply with these Terms. If Customer is given passwords to access the iMEDIABAY Platform, Customer shall require that all users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify iMEDIABAY if any user who has access to a user ID is no longer an employee of Customer. Customer shall be responsible for compliance by its employees and contractors with these Terms and shall notify such users of the use restrictions for access to the iMEDIABAY Platform.
c. Restriction: Customer agrees that Customer will not itself or allow any third party to: (i) reverse assemble, reverse compile, or reverse engineer the Platform, or otherwise attempt to discover any software source code or underlying proprietary information; (ii) remove, efface or obscure any copyright notices, logos, or other proprietary notices or legends (whether iMEDIABAY’s, its partners’, or any third party’s) from the Platform or other iMEDIABAY materials obtained through the Services; (iii) use the Platform in any manner which adversely affects iMEDIABAY or its customers, their data or security, or seek to access the data of any third party without iMEDIABAY’s prior written authorization; (iv) use any "deep-link", "page-scrape", "robot", "spider", data mining, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, bulk download, copy, or monitor any portion of the Platform; or (v) use the Platform or iMEDIABAY Services in any way that is not in compliance with all applicable laws, restrictions, and regulations of the United States and any applicable foreign jurisdiction, or in any way that infringes on third party rights.
d. Ownership of Customer Content and iMEDIABAY Platform: During the performance of the Services, iMEDIABAY will create text, images, video, and/or other creative content for advertisements (“Ad Creative(s)”) using the iMEDIABAY Platform, and Customer may provide iMEDIABAY with certain content, data, text, audio, video, images, logos, Guidelines or other content, in order for IMEDIABAY to provide such Services (“Customer Content”), as may be further described in an order form. Customer retains any and all right, title and interest in and to Customer Content, including all Intellectual Property rights therein. iMEDIABAY and its licensors retains any and all right, title and interest in and to the iMEDIABAY Platform and all components thereof, including all Intellectual Property rights therein.
e. Ownership of Ad Creatives: Provided that Customer adheres to all obligations in these Terms and has paid iMEDIABAY in full, and except as provided for in subsection (f) below, Customer shall be the owner of the Ad Creatives created by iMEDIABAY that have been accepted by Customer, upon full payment to iMEDIABAY, including all Intellectual Property rights therein (“Works”) under an applicable Order Form, and, except for Stock Images, which are subject to a license as provided for in subsection (f) below, IMEDIABAY hereby assigns all right, title and interest in and to the Works, including all Intellectual Property rights therein, to Customer. iMEDIABAY agrees to assist Customer, or its designee, at Customer’s expense to secure the Customer’s rights in the Works including the execution of all applications, assignments and all other instruments necessary to secure such rights.
f. Stock Images for Image Services: Customer agrees that the Ad Creatives created in connection with Image Services may contain certain stock images or content, including audio and video content (“Stock Images”). iMEDIABAY grants Customer a non-exclusive, non-transferable, non-sublicenseable, worldwide, perpetual license to use the Stock Images solely in connection with the Ad Creatives for a digital advertising impression campaign, provided that such use of the Stock Images is not offensive, defamatory, deceptive, or otherwise illegal. Without limiting the foregoing, Customer agrees not to use the Stock Images in connection with: (i) advertisements for pornography, "adult videos", adult entertainment venues, escort services, or the like; (ii) advertisements of tobacco products; c) advertisements in a political context, such as advertisements for any party, candidate, or elected official, or in connection with any political policy or viewpoint; (iii) advertisements that include immoral or criminal activities; (iv) trademarks or logo designs; or (v) any stand-alone uses.
g. Customer Guidelines and Acceptance: During the course of the Agreement, Customer may give iMEDIABAY certain guidelines relating to Ad Creatives (“Guidelines”). iMEDIABAY agrees to use good faith efforts to adhere to such Guidelines in creating the Ad Creatives. Customer shall review and accept Ad Creatives through the iMEDIABAY Platform or otherwise and iMEDIABAY is not responsible for such Ad Creatives after acceptance by Customer, including any claims arising out of the Guidelines or Customer Content received by Customer.
h. SEM Services: During the performance of the SEM Services, all campaigns to be optimized will be set to "rotate indefinitely" in AdWords and all Ad Groups will be set to "rotate more evenly" in Bing to enable account optimization.
3. Confidentiality: Any non-public information disclosed by one Party to the other in connection with these Terms, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under these Terms. iMEDIABAY may disclose Confidential Information to its own third-party suppliers or service providers only if necessary and only for purposes related to the iMEDIABAY services, and iMEDIABAY will use reasonable endeavors to ensure that any such third-party suppliers maintain such information confidential. Upon request of the Disclosing Party or upon termination of these Terms, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Confidential Information does not include information that (i) is part of the public domain; (ii) was already known to or in the receipt of the receiving party at the time of disclosure; (iii) was lawfully disclosed to the receiving party by a third party not otherwise subject to confidentiality; or (iv) was independently developed by a party without use of or reference to the other party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to a lawful court order requesting disclosure provided that the receiving party gives prompt notice to the disclosing party and allows, where practical, the disclosing party to seek protection of such Confidential Information and the receiving party only disclose such Confidential Information that is the subject of the order. Each Party’s confidentiality obligations hereunder shall continue for two years following termination of these Terms.
4. Representations and Warranties: Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into these Terms and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, these Terms will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. Customer further represents and warrants that the Customer Content and the Guidelines do not and will not infringe on third-party Intellectual Property rights, or any other third-party rights including without limitation privacy and publicity rights and the Customer Content and Guidelines do not represent false or misleading advertising
5. Disclaimer of Warranty: EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS, THE IMEDIABAY SERVICE AND IMEDIABAY PLATFORM ARE PROVIDED BY IMEDIABAY “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
6. Limitation on Liability: IN NO EVENT WILL IMEDIABAY BE LIABLE IN CONNECTION WITH ANY MATTER ARISING OUT OF THESE TERMS FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THE POSSIBILITY OR CAUSE OF SUCH DAMAGES WAS KNOWN, AND IN NO EVENT SHALL IMEDIABAY’S TOTAL LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT OF MONIES PAID OR OWED BY CUSTOMER TO IMEDIABAY UNDER THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM.
7. Indemnification: Customer shall indemnify, defend and hold harmless iMEDIABAY, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses) or other liabilities (“Liabilities”), arising out of or resulting from any third-party claim asserted against iMEDIABAY to the extent any claim arises out of (i) gross negligence, misconduct or criminal acts of Customer; (ii) the Customer Content or Guidelines; (iii) breach of these Terms by Customer; or (iv) failure to comply with applicable laws, rules and regulations. iMEDIABAY shall provide Customer with prompt notice of any Liabilities arising under this section. Customer shall not settle any Liabilities that would require the payment of money by iMEDIABAY or the admission of fault or responsibility by iMEDIABAY without the express written consent of iMEDIABAY. iMEDIABAY shall have the opportunity to participate in the defense at its own cost.
8. Term: These Terms commence on the date of execution of an Order Form that references these Terms, and shall continue in full force and effect until all Order Forms executed in accordance with these Terms have either expired or terminated (“Term”). Further, either Party may terminate these Terms, upon written notice to the other Party if such other Party commits a material breach of these Terms and such breach is not cured within the 30-day notice period.
a. Binding Arbitration: Except as provided in this section, the Parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of these Terms shall be settled by binding arbitration to be held in San Francisco, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief), and the parties agree to the exclusive jurisdiction of the federal and state courts located in San Francisco County. California law shall apply to the merits of any dispute or claim, without reference to conflicts of law rules, that may arise under these Terms.
b. Independent Contractors: Nothing contained in these Terms shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the parties. Except as contemplated by these Terms, neither Party hereto shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
c. Entire Agreement; Amendments: These Terms, including all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. These Terms may only be modified by a written agreement dated subsequent to the date of these Terms and signed by a duly authorized representative of each Party.
d. Assignment: Customer may not assign these Terms without the prior written consent of iMEDIABAY, which shall not be unreasonably withheld.
e. Severability: If a court of competent jurisdiction finds any provision or term of these Terms unenforceable, that provision or term will be modified to best effect the parties’ intent, and all other terms will continue in force.
f. Waivers: The failure to exercise any right provided in these Terms shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
g. Notices: All notices delivered in connection with these Terms must be given via a paper writing or email. Notices will be deemed given as of (i) three days from the postmark date if sent via first class mail to the address of the Party to be notified; or (ii) the day emailed to the correct email address of the Party to be notified.
iMediaBay (A division of iOPEX Technologies Inc.)
1245 S. Winchester Blvd, Suite 309
San Jose, California 95128, USA