Privacy Compliance Requirements.
2.1 Each party agrees that it shall comply with its respective obligations under applicable data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines, including, without limitation and as applicable, U.S. laws; the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and prior to 25 May 2018, the EU Data Protection Directive (Directive 95/46/EC), and on and after 25 May 2018, the EU General Data Protection Regulation (Regulation 2016/679).
2.2 Publisher agrees that it is responsible and liable for providing notice and obtaining any required user consent on behalf of itself, Motionspots and all applicable Demand Partners with respect to (a) passing personal information, precise geo location, user device identification or any sensitive information of its users to Motionspots and Demand Partners, (b) collecting and using statistical identification of its users or other non-cookie technologies (such as eTags and web or browser cache), (c) collecting and using information across web browsers and devices, and (d) first- and third-party cookies, including without limitation, ensuring users are clearly informed about third-party cookies and promptly notifying Motionspots in the event a user opts out of having third-party cookies dropped. Motionspots will cooperate with Publisher in complying with such requirements.
2.3 The EU Data Protection Addendum attached hereto shall form part of this Agreement and its terms are hereby incorporated in the Agreement by reference.
2.4 Publisher shall not include or launch any Publisher Property on any of the Motionspots Services if such Publisher Property is directed at U.S. children under 13 as contemplated by the Children’s Online Privacy Protection Law, as amended (“COPPA”), and Publisher shall flag within the Motionspots Services or inform Motionspots in writing prior to launching any of such Publisher Properties on any of the Motionspots Services. Publisher shall not pass to Motionspots or its Demand Partners any personal information of children under 13 as defined under COPPA.
2.5 If any Publisher Property is a mobile application, then Publisher must clearly and conspicuously post notice, or a link to notice, in any store or on any website or otherwise where the mobile applicable may be acquired that contains: (a) a statement of the fact that data may be collected for cross-app advertising; (b) a description of types of data, including any personally identifiable information, precise location data, or personal directory data, that are collected for cross-app advertising purposes; (c) an explanation of how, and for what purpose, the data collected will be used or transferred to third parties; and (d) a conspicuous link to or description of how to access an opt-out mechanism. If notice cannot be provided in or around advertisements, then Publisher should make arrangements to provide notice within the application or on the landing page of the advertisement.
Data Ownership and Use.
Publisher retains all right, title and interest in and to all data derived from the Publisher Inventory or the publication of advertisements therein (“Publisher Data”). Publisher Data shall not include any data provided or made available by Motionspots, its Demand Partners or third-party service providers (“Motionspots Data”). Motionspots retains all right, title and interest in and to all Motionspots Data. Publisher acknowledges that Motionspots and Demand Partners may drop cookies on its users in connection with the Motionspots Services. Publisher hereby grants Motionspots and its Demand Partners a limited, revocable, royalty-free right to collect, use and share user data (including Publisher Data) that is passed by Publisher or collected by Motionspots or Demand Partner (a) in connection with the delivery and optimization of the Motionspots Services during the Term, (b) to use such data for reporting purposes during and after the Term, and (c) in response to a legal demand or process during and after the Term.
Each party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other party and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use such Confidential Information other than in furtherance of its obligations hereunder. “Confidential Information” shall mean any information of the disclosing party which is, or should reasonably be understood to be, confidential or proprietary to the disclosing party or its client, including, but not limited to, information disclosed between parties, either directly or indirectly, in writing, drawing, orally, or electronically: (i) related to technical know-how and technological innovations; (ii) related to operations, financial status, or sales and business plans and strategies; (iii) Intellectual Property (as defined below). Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documentation: (a) is known to the receiving party at the time of the disclosure; (b) has become publicly known through no wrongful act of the receiving party; (c) has rightfully been received from a third-party which the disclosing party has authorized to make such disclosures; or (d) was disclosed pursuant to a court order or similar governmental authority, provided, however, that the receiving party shall provide prompt notice of such order to the disclosing party to enable the disclosing party to act to prevent or restrict the ordered disclosure. The terms of this Agreement shall be deemed Confidential Information of Motionspots.
Each party acknowledges and agrees that: (a) the patents, trade secrets, know-how, copyrights, trademarks, logos, service marks, and moral, authorship and other proprietary rights to and in any service, product, technology, platform, source code, algorithms, invention or business method (“Intellectual Property”) of the other party shall remain the sole property of that party; (b) it shall at no time contest the validity of the other party’s Intellectual Property during the Term; (c) it shall not copy, modify, distribute, transfer, sell, reproduce, publish, perform, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code from, prepare derivative works or otherwise use the Intellectual Property of the other party except as explicitly set forth in this Agreement; and (d) with respect to Publisher, it shall not allow any third party or unauthorized user or computer system to access or use the Motionspots Services and it will take all reasonable steps to protect the Motionspots Services from unauthorized access or use. Publisher acknowledges that the Motionspots Services and Intellectual Property of Motionspots (including all methods, concepts or techniques utilized therein and improvements or enhancements thereto, regardless of the party or parties responsible for such improvements and/or enhancements) and its related documentation are commercially valuable to Motionspots and constitute Motionspots’ proprietary information and are to be treated as Confidential Information of Motionspots. Except for right to receive or access the Motionspots Services selected by Publisher, no right in or title to the Motionspots Services or Intellectual Property of Motionspots or any improvements thereto shall be deemed to have been vested in or transferred to Publisher under the terms of the Agreement. All title to and ownership of the Motionspots Services, and the Intellectual Property rights therein or associated therewith, remain with Motionspots. Publisher acknowledges that Motionspots shall exclusively own and may use any ideas, concepts, modifications, suggestions, improvements, enhancements and information arising out of Publisher’s use of the Motionspots Services.
(i) procure for Publisher the right to continue using the applicable Motionspots Services
(ii) replace or modify the applicable Motionspots Services so that it becomes non-infringing
(iii) if clauses (i) and (ii) are not commercially practicable, terminate this Agreement upon written notice to Publisher.
Notwithstanding the foregoing, Motionspots will have no obligation with respect to any infringement Claim based upon
(i) any use of the Motionspots Services not in accordance with this Agreement or for purposes not intended by Motionspots,
(ii) any use of the Motionspots Services in combination with other products, equipment, or software not supplied by Motionspots, or
(iii) any modification of the Motionspots Services by any person other than Motionspots or its authorized agents or subcontractors.
This section states motionspots’s entire liability and publisher’s sole and exclusive remedy for intellectual property infringement claims and actions
Limitations on liability. Except with respect to either party’s confidentiality, indemnification and payment obligations, or fraud and willful misconduct, in no event shall either party’s aggregate liability under this agreement exceed the motionspots fee due under this agreement in the six-month period preceding the claim. Notwithstanding anything to the contrary herein, in no event shall either party be liable for any indirect, incidental, consequential, punitive or special damages (including lost profits, loss of use or lost data) of the other party, even if such party has been advised of the possibility of such damages, nor shall motionspots be liable for the acts or omissions of its demand partners, publisher’s demand partners or clients, publisher’s activities with respect to other publishers who use the motionspots services, or any third party service providers of motionspots or publisher.
The parties must file any action arising directly or indirectly from this agreement no later than one (1) year after the claim has accrued. The parties waive the right to file an action
ARISING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT UNDER ANY LONGER STATUTE OF LIMITATIONS.
Choice of Law & Venue.
This Agreement shall be construed and interpreted under the laws of India without giving effect to the principles of conflict of laws in those jurisdictions, and the parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the courts of India in respect of any dispute arising under or in connection with this Agreement.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements or communications, relating to the subject matter hereof. This Agreement shall not be modified by except by a written agreement between the parties; provided, however, that Motionspots may amend or modify any of the terms and conditions in the Agreement upon at least thirty (30) days’ prior written notice to Publisher. If any such changes notified by Motionspots are to commercial terms in the Agreement and they are not acceptable to Publisher, Publisher must notify Motionspots in writing of its objection thereto prior to the expiration of such 30-day notice period. If such written notification is not made by Publisher during the applicable 30-day period, continued use of the Motionspots Services by Publisher will constitute its binding acceptance of the applicable changes to the commercial terms. For the avoidance of doubt, Publisher may not object to noticed changes to non-commercial terms. The failure of either party to enforce strict performance by the other party of any provision of the Agreement or to exercise any right hereunder or thereunder shall not be construed as a waiver of that party’s right. In the event that any provision of the Agreement is held invalid by a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect. The parties are each independent contractor, and nothing in this Agreement is intended to create a partnership, joint venture or agency relationship between them. The rights and obligations of each party under the Agreement shall not be assigned without the prior written approval of the other party, which approval shall not be unreasonably withheld; provided, however, that either party may assign the Agreement without such consent to a corporate affiliate or in connection with a change of control or sale of substantially all of its assets, subject to the assigning party providing prior written notice of such assignment. Any attempted assignment without consent where consent is required shall be void. Subject to the foregoing, each party’s rights and obligations shall inure to the benefit of their respective successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. This Agreement may be executed via a recognized electronic signature service or delivered by facsimile transmission, or may be signed, scanned and emailed, and any such signatures shall be treated as original signatures for all applicable purposes. Any notices given under this Agreement shall be deemed to be effectively given
(i) when delivered personally,
(ii) five (5) days after being placed in the mail, postage prepaid, certified, registered or similar mail status, or
(iii) one (1) day after being sent via recognized express courier service, in each case, to the recipient’s address specified in this Agreement or such other address as specified by the parties in writing, with a copy to the attention of General Counsel for notices sent to Motionspots.