By using Wunderkind`s Platforms and Services (as defined below), provided by Wunderkind Corporation (collectively, “Wunderkind”) you agree to be bound by the following Advertising Terms of Service (“Ads TOS”). The Ads TOS may be updated by Wunderkind from time to time without notice. These TOS governs your Company’s access to and use of any Wunderkind’s Platforms and Services.
a) Supplier Forms. Wunderkind and Company may execute supplier forms under this Agreement (“Supplier Forms”), pursuant to which Wunderkind will operate and maintain certain Wunderkind software platforms and/or proprietary technologies (“Platforms”) and provide related services (“Services”), as further described herein and in such Order Forms. All Supplier Forms and the Platforms and Services specified thereunder will be subject to the terms of this Agreement.
b) Precedence. In the event any conflict or inconsistencies arise between the terms of this Agreement and the terms of any Supplier Form issued hereunder, the terms of this Agreement shall control unless expressly stated otherwise in such Supplier Form with reference to this Section 1(b).
- RIGHTS AND RESPONSIBILITIES
a) Right to Access and Use. Subject to the terms and conditions of this Agreement and the applicable Supplier Form, Wunderkind hereby grants to the Company a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable right to access and use the applicable Platforms and Services under Wunderkind’s Intellectual Property Rights therein during the applicable term for the purpose of displaying Wunderkind supplied pre-emptible advertising content (“Advertisements”) of third party advertisers (collectively “Advertisers”) on the applicable Sites. The right to access and use includes all tags, scripts and code (“Tags”) required for placement in pages of the Sites in order to serve the advertisements. The Company will use the Platform and the Tags solely to the extent necessary for Wunderkind to perform its obligations under this Agreement and for no other purpose.
b) Restrictions. The Company agrees that it will not, without the prior written consent of Wunderkind, (i) copy, reproduce, create derivative works of, disclose or publicly display a Platform; (ii) decompile, disassemble, reverse engineer or otherwise attempt to determine the functionality of a Platform (other than to the extent permitted by, and in accordance with, applicable law which cannot be excluded by the agreement of the parties);; (iii) directly or indirectly license or sublicense, distribute, resell, rent, lease, subcontract, operate as a service bureau or otherwise make a Platform available to any third party; (iv) develop a product or service using ideas, features, functions or graphics similar to those in a Platform; (v) use a Platform for a purpose other than that set forth in this Agreement or otherwise in a manner that violates any applicable law, rule or regulation; (vi) remove, conceal or alter any identification, copyright or ; or (vii) run “robots” or “spiders” against the Properties or use any means, to artificially increase the number of impressions or clickthroughs, including, but not limited to, encouraging users with offers of cash, prizes or anything else of value to click on advertisements. Company shall be responsible, with the assistance of Wunderkind, for placing the necessary Tags on its Sites required to enable the display of advertisements,
c) No Implied License. This Agreement, any Supplier Forms hereto and the conduct of the parties in connection with this Agreement and such Supplier Forms are not intended to, and shall not be construed to, convey any rights to Company or any third party under any Intellectual Property Rights of Wunderkind in any manner, including as a result of patent exhaustion, estoppel or implied license doctrines in any jurisdiction or any similar doctrine, whether by operation of law or otherwise; except the right to use Platforms and Services under Wunderkind’s Intellectual Property Rights in accordance with Section 2(a).
a) Term. The term of this Agreement (the “Term”) will commence on the Supplier Form Effective Date and will continue until terminated as specified herein.
b) Termination. Either party may terminate the applicable Supplier Form and this Agreement, with or without cause, at any time by providing 60 days’ prior written notice to the other party. Notwithstanding the foregoing, in the event of a termination pursuant to the previous sentence, the Agreement and applicable Supplier Form shall continue to the extent necessary to fulfill any order Behavioral Ad Unit campaigns agreed to in writing prior to such termination.
- INTELLECTUAL PROPERTY
a) General. All right, title and interest in and to all Platform, the Services and all Intellectual Property Rights therein, and any enhancements, derivative works or improvements thereto are and shall remain exclusively with Wunderkind, its licensors and their respective successors and assigns. Company is not granted any ownership right, title or interest whatsoever in any Platform, Services, other Confidential and Proprietary Information of Wunderkind (as defined in Section 6), or any Intellectual Property Rights associated with any of the foregoing. “Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction whether registered or unregistered, including rights in and to (a) trade secrets, know-how and other confidential or non-public business information; (b) original works of authorship, copyrights, and any moral rights relating thereto; (c) trademarks, trade names, service marks, trade dress, logos, other indications of origin, and any goodwill therein; (d) patents, patent applications, and any and all divisions, continuations, continuations-in-part and extensions thereof, invention disclosures, inventions, discoveries and improvements; (e) Internet domain names; (f) social media accounts; and (h) claims, causes of action, defenses and the right to sue and collect damages relating to the enforcement of the foregoing; in each case of (a) – (e), including any registrations of applications to register and renewals and extensions of, any of the foregoing with or by any governmental entity in any jurisdiction.
b) DCMA. If you believe that your work has been copied and posted on the Site or through Wunderkind’s Service in a way that constitutes copyright infringement, please provide us with the following information:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
ii. a description of the copyrighted work that you claim has been infringed;
iii. a description of where the material that you claim is infringing is located on the Site or in our Service;
iv. your address, telephone number, and email address;
v. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please send all of the above information to:
By email: legal@Wunderkind.com
If you do not send us all of the required information, your notice/request may not be valid.
a) Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All performance information relating to the Wunderkind Products, and all pricing related information, shall be deemed Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
b) Company agrees that if Company or its Representatives direct or instruct Wunderkind to disclose or transmit data or information to a third-party entity, including email service providers or other Company contractors (such entities “Third-Party Partners”), that Wunderkind is not responsible for the privacy, security, or integrity of such data or information, and the treatment of such data or information shall be governed by Company’s relationship or agreement with such Third-Party Partner. Company acknowledges and agrees that Third-Party Partners are not sub-processors or sub-contractors of Wunderkind, and Wunderkind assumes no responsibility or liability for the acts or omissions of Third-Party Partners.
c) Consent to Use of Data. The Company agrees that Wunderkind may use information gathered in connection with the Company’s use of Platforms or Services to improve Platforms or Services, and Wunderkind’s products and services, as long as such information is in a form that does not individually identify the Company or personally identify end users of Company’s website(s) (“Service Data”).
d) Consumer Integrity Program. Company grants to Wunderkind, the right to access and use Service Data (including pseudonymous identifiers) in connection with the provision of its device and consumer integrity program (the “Program”) in which Company and other companies participating in the Program (together, the “Participants”) permit Wunderkind additional rights to collect and use data generated by Company’s use of Platforms and Services to better identify the end-users of Participants’ websites, to any and all Participants which benefit other Participants in the Program, by: (i) running marketing or advertising campaigns against such Service Data, including cross-device marketing or advertising campaigns where Wunderkind is able to infer that a particular browser, device, or pseudonymous identifier belongs to the same end user, and/or (ii) onboarding offline data. A Participant’s cookie or other first-party ID data included in the Service Data will not be accessed by or transferred to any other Participant. Company also grants Wunderkind the right to disclose Service Data for use in connection with the Program and related Wunderkind services, as long as any disclosure of such data is aggregated, anonymized or otherwise does not individually identify Company.
e) Program Data. To the extent that Wunderkind provides or makes available to Company any data derived from, stored in, or otherwise relating to the pixel tags, cookies, web beacons, mobile advertising identifiers and other pseudonymous information provided or generated by Wunderkind in the performance of Program (“Program Data”), Wunderkind grants to Company, during the Term, the right to use and benefit from the Program Data solely in connection with Company’s participation in the Program. Wunderkind is not obligated to disclose to Company the identity of any Participant. Company must cease all use of Program Data upon notification by Wunderkind. As between Wunderkind and Company, Wunderkind will own all rights in and to all Program Data.
- LIMITATION OF LIABILITY; INDEMNIFICATION
a) Limitation on Liability. WUNDERKIND’S CUMULATIVE LIABILITY FOR DAMAGES, IF ANY, FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH COMPLAINTS OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR AN SUPPLIER FORM HERETO IS LIMITED TO THE CUMULATIVE AMOUNT OF THE FEES PAID BY THE COMPANY PURSUANT TO THE APPLICABLE SUPPLIER FORM FOR THE THREE (3) PAY PERIODS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL WUNDERKIND OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
b) Company Indemnification. The Company shall defend, indemnify, and hold harmless Wunderkind, and its officers, directors, employees, agents, contractors, suppliers, and licensors against all costs, expenses, losses, and damages (including reasonable attorneys’ fees and costs) incurred or awarded as a result of or in connection with claims of third parties against Wunderkind based on or arising directly or indirectly out of (i) the Company’s use of a Platform, (ii) a breach by the Company of any terms of this Agreement or an Supplier Form, or (iii) the Company’s violation of any applicable laws or regulations(including, but not limited to, those governing accessibility, such as the Americans with Disabilities Act (“ADA”) and its state/local equivalents).
All notices or other communications required or permitted under this Agreement shall be in writing, and shall be deemed sufficiently given if delivered by personal delivery, by courier, or by facsimile to the fax number provided by the recipient, addressed to the party to whom directed at the applicable address shown above. Any such notice or communication shall be deemed to have been delivered at the time of personal delivery, in the case of courier upon receipt, or in the case of facsimile, upon receipt of confirmation of delivery of the fax. Any notices sent to Wunderkind shall be sent as provided in this Section and also by electronic mail concurrently to legal@Wunderkind.com.
- DISPUTE RESOLUTION
This Agreement shall be interpreted and enforced in accordance with the laws of the state of New York, without regard to its conflict of law principles. The sole and exclusive venue for all disputes arising out of or relating in any way to this Agreement shall be the United States District Court for the Southern District of New York and the New York Supreme Court in New York, NY and the parties consent to personal and exclusive jurisdiction in those venues.
- AUTHORITY; WARRANTIES
a) Each party and each signatory represents that the signatory hereto has the authority to bind such entity to these terms and conditions. Each party represents and warrants that the party is duly authorized and has legal capacity to enter into this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. To the maximum extent permitted by applicable law, except as expressly set out in this Section 11, Wunderkind provides no other representations and warranties of any kind, whether express, implied, statutory or otherwise, and Wunderkind specifically disclaims all implied warranties including any warranties of merchantability or fitness for a particular purpose or non-infringement.
b) To the extent and Supplier Form involves Wunderkind’s behavioral audiences module (“Audiences”), Audiences may be made available, accessed or provided through third-party services and content (including advertising) that Wunderkind does not control (“Third-Party Services”). PLEASE NOTE THAT COMPANY’S RELATIONSHIP WITH ANY THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH COMPANY’S THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY COMPANY’S AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDER(S). Company’s is solely responsible for payment obligations for any advertisements purchased through any Third-Party Services. Wunderkind makes no effort to review any of such third party agreements for any purpose, including for accuracy, legality or non-infringement, and Wunderkind is not responsible for any third party content or agreements. Wunderkind does not endorse, are not responsible for, and make no representations as to such Third-Party Services, their content or the manner in which they handle Company’s data and/or information. Wunderkind is not liable for any damage or loss caused or alleged to be caused by or in connection with Company’s access or use of any such Third-Party Services, or Company’s reliance on the privacy practices or other policies of such Third-Party Services. Audiences may also contain features that enable Third-Party Services (such as social media services like Facebook) to be directly integrated into Audiences. Company will be required to grant advertiser access to Wunderkind for such Third-Party Services. Company acknowledges and agrees that it is solely responsible for payment of all expenses and costs relating to such Third-Party Services, including all advertising costs incurred through such services (e.g., Facebook Custom Audiences). By providing such access to Third-Party Services, Company is allowing Wunderkind to use and interact with such accounts for the purpose of providing Audiences.
c) If Personal Data (as defined in the Terms) is processed by Wunderkind under the Agreement., the terms set forth at com/gdpr_0418 (the “Terms”) shall apply and are incorporated by reference into this Agreement as if included in full. For the purposes of interpreting the Terms, this Section 11(c) shall be referred to as the “DPA” or “Addendum”. The Terms are supplemental to the Agreement and sets out the terms that apply when Personal Data is processed by Wunderkind under the Agreement. If there is a conflict between the Agreement and the Terms, the Terms will control with respect to the processing of Personal Data. Capitalized terms used but not defined in the Terms have the same meanings as set out in the terms of this Agreement.
d) Wunderkind and Company shall adhere to applicable self-regulatory rules and guidelines such as the Digital Advertising Code located at www.aboutads.info.
e) The Company represents and warrants that (1) the Site(s)’ original content will not: (i) contain, promote or have links to any sexually explicit materials, obscene language, hate material, defamatory materials, materials promoting violence, the use of firearms or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status; (ii) contain any “pop-ups” or “pop-unders” that in any way restrict the view of any Behavioral Ad Units hereunder; (iii) promote any software piracy systems (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (iv) promote any illegal activities, deceptive practices, violations or infringements of the Intellectual Property Rights of others; (v) be personal web pages, FREE hosted pages (e.g., Geocities, Xoom, Tripod, Talk City, etc.), blank pages with no content, or pages that only contain advertisements; (vi) promote activities generally understood as Internet abuse, including the sending of unsolicited bulk electronic mail or the use of Spyware Programs (and Company further agrees that it shall not engage in any form of fraudulent traffic generating methods including: robots, spiders, auto-spawning browsers, auto reloading, meta refreshes or any other form of fraudulent and artificial traffic); and (vii) be advertised or promoted by the Company through the use of unsolicited bulk email, or to the best of its knowledge allow Site(s)’ members or customers to engage in similar activities through the Site(s), including any activities expressly prohibited herein; (2) it will refrain from intentionally allowing Site visitors or customers to engage any activities expressly prohibited herein; (3) it has all necessary licenses and clearances to operate the Site(s); (4) the Site(s) comply with all applicable laws; and (5) all content on the Site(s) is legal to distribute and it owns or has the legal right to use, distribute and display such content or deliverables. The Company further agrees it is its obligation to comply with the ADA and its state and local equivalents, including, but not limited to, with respect to website accessibility and mobile application accessibility via compliance with generally recognized guidelines governing accessible website and mobile application design (which the Company recognizes is currently the Web Content Accessibility Guidelines (“WCAG”) 2.1 at Levels A and AA).
f) If Company uses the Platform in connection with Site(s) directed to end users outside the United States, Company agrees to comply with all applicable laws and regulations in such countries as well, including but not limited to obtaining end user consent via the Site(s) if required by applicable law. Both parties shall adhere to applicable self-regulatory rules and guidelines such as (to the extent applicable) the Digital Advertising Code located at aboutads.info. As a member of the Network Advertising Initiative (“NAI”), Wunderkind is obligated to strongly encourage Company to provide visitors to Site(s) with a notice of the types of technologies used by Wunderkind on the Site(s) Below is sample language for the privacy of Site(s) for the convenience of Company:
“We may use third party advertising companies to collect data and/or serve ads when you visit our website or application. These companies may use information about your visits to this and other websites or applications in order to provide advertisements about goods and services of interest to you. Please keep in mind that your browser settings may not permit you to control the technologies utilized by these third party companies. If you would like more information about this practice and to know your choices about not having this information used by these companies, visit http://www.networkadvertising.org/choices/.
This Agreement sets forth the entire agreement between the parties pertaining to this subject matter and supersedes all prior negotiations, understandings and agreements between the parties whether written or oral concerning this subject matter. Any change or modification to this Agreement must be in writing and signed by authorized representatives of the parties to be binding. The parties are independent contractors and nothing herein shall create a partnership or joint venture. All dollar amounts shown in this document are in U.S. dollars unless otherwise indicated. Except as otherwise explicitly specified to the contrary, the word “including” will be construed as “including without limitation”. This Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute a single agreement. This Agreement shall be binding upon and for the benefit of the undersigned parties, and their respective permitted successors and assigns. The Company may not assign this Agreement by operation of law or otherwise, without the prior written consent of Wunderkind and any attempted assignment in violation of the foregoing shall be null and void, but Wunderkind may assign this Agreement without restriction.