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Eskimi operates a technology solution (the “Eskimi Platform”) which allows Registered Bidders (as defined below) to engage in real-time auctions (“Auctions”) to place advertising content on websites, connected tv applications, mobile websites or mobile applications (“Target Sites”) provided by content publishers or providers of mobile and connected television applications (“Content Providers”).
These General Terms and Conditions (the “General Terms”) shall be applicable to the Companies (“Company”) that have signed the Main Terms Sheet (the “Main Terms’), which together with these General Terms shall constitute an entire Master Service Agreement for Eskimi Ad Exchange Services (the “Agreement”).
By entering into Agreement, the Company, following the technical set-up implemented by Eskimi and the Company, may gain access to Eskimi Platform in order to become a Registered Bidder (Demand Partner) and/or a Content Provider (Supply Partner) and to participate in Auctions from time to time, subject to the terms and conditions set forth herein.
(a) “Advertising” means advertising or other content proposed to be distributed to Target Sites.
(b) “Ad Inventory” means space offered for the placement of Advertising to the Winning Bidder.
(c) “Bid” means a bid for Ad Inventory made by a Registered Bidder in an Auction via Eskimi Platform.
(d) “Data Protection Legislation” means relevant and applicable laws, regulations, subsidiary legislation, guidelines, and orders related to privacy and protection of personal data.
(e) “Demand Partner” means Registered Bidder, which is DSP or Ad Exchange, bidding for the Ad Inventory on Eskimi Platform.
(f) “Documentation” means the description of the rules and procedures for conduct of the Auction set forth on the Auction Platform, as such rules and procedures may change from time to time.
(g) “Performance Data” means any data that Eskimi Platform collects pertaining to the performance of specific Advertising on the applicable Ad Inventory, including “clicks” or end user interaction with Advertising, impression counts, http header information, and conversion tracking, but excluding Device Identifiers.
(h) “Personal Data” means any information relating to an identified or identifiable User.
(i) “Registered Bidder” means a person or entity that executes the agreement with Eskimi in order to use the Eskimi Platform to participate in Auctions and to place its Advertising in the Ad Inventory for which such Registered Bidder is the Winning Bidder.
(j) “Supply Partner” means Publisher or SSP providing Ad Inventory for bidding purposes.
(k) “Targeting Data” means data or information available for Ad Inventory provided by Content Providers and received by DSP through its participation in an Auction (e.g., age, gender, zip code). Targeting Data does not include the Device Identifier.
(l) “Target Site Data” means data or information obtained DSP through its participation in the Eskimi Platform that identifies or allows identification of a Target Site, its brand or Users. Target Site Data does not include Targeting Data, Device Identifier or Clickstream Data relating to a User’s interaction with Advertising.
(m) “User” means any natural person that is a visitor to, or other end-user of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone or browser) used by such natural person or other end-user to visit, access, or use any such website, portal, device, application, or other online service.
(n) “User Data” means information that is specific to or attributable to a User, including location, or Device Identifier that, without associating it with other information, cannot be used to uniquely identify, contact or precisely locate such User.
(o) “Winning Bid” means a Bid which is selected as the winning Bid by the Eskimi Platform according to the rules and procedures set forth in the appendix, as in effect from time to time.
(p) “Winning Bid Price” means the price at which the Eskimi Platform awards the Winning Bidder with the Winning Bid.
(q) “Winning Bidder” means the Registered Bidder that participates in an Auction and is selected as the winning Registered Bidder by the Eskimi Platform according to the rules and procedures set forth in the Appendix, as in effect from time to time.
2.1. Subject to the terms and conditions of this Agreement, ESKIMI shall provide Eskimi Platform service by granting to Company, for the Term of this Agreement, a non-exclusive, non-transferable non-assignable right to access and use the Eskimi Platform, solely for the purposes of (i) bidding on the placement of Bidder’s Advertising on the Ad Inventory at Target Sites and/or (ii) providing Ad Inventory for the placement of Advertising to the Winning Bidder pursuant to the Eskimi Platform(the “Services”).
2.2. Ownership of Eskimi Platform. No licenses to any intellectual property rights of Eskimi are granted or shall be implied here under except to the extent necessary for exercise of its rights under Clause 2.1. Company agrees and acknowledges that Eskimi (or its third-party providers) retains ownership of all right, title and interest to all portions of the Eskimi Platform and all intellectual property rights there in, and that, other than the license granted herein, Company shall not obtain or claim any rights in or ownership interest to the Eskimi Platform, or any associated intellectual property rights.
2.3. The Company hereby agrees to use the Eskimi Platform solely for the Service and will not sell, lease, store or provide, directly or indirectly, the Eskimi Platform or any portion thereof to any third party. The Company hereby agrees that it shall not in any way tamper with the functionality of the Eskimi Platform or to copy or print pages from the Eskimi Platform or their content except where expressly permitted on the Eskimi Platform. Without limiting the foregoing, Company agrees not to directly transmit any material to the Eskimi Platform that contains any viruses, Trojan horses, worms, or other computer programming routines that may damage, interfere with, intercept, copy or misappropriate any system, data or information relating to the Eskimi Platform. Company may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, reverse engineer, decompile, create derivative works from, transfer or sell any the Eskimi Platform or any component thereof. Without limitation, Company shall not make any speculative, false, or fraudulent posting of information or Bids. Fraudulent posting of such information will be considered a breach and shall result in immediate termination of the Company’s access to the Eskimi Platform. It is hereby agreed that for the Advertising, Ad Inventory, content and/or materials owned or provided by any of Company’s affiliates, agents and/or any other third party (collectively the „Affiliates”), Company’s sole responsibilities and/or obligations, with this Clause 2.3, will be to obtain contractual representations from its Affiliates, that such Affiliates will comply with the same restrictions as stated herein.
2.4. Eskimi may, in its sole discretion, withnotice, temporarily or permanently suspend the operation of Company’s use ofthe Eskimi Platform without any liability of Eskimi to the Company.
3.1. Payment of Winning Bid Amount. For each Winning Bid for which the Demand Partner is theWinning Bidder, the Demand Partner shall pay the Winning Bid Price as displayed in the EskimiPlatform to Eskimi within forty-five (45) days of the end of the calendar month in which such WinningBid occurred.
3.2. Payment by Eskimi to the Supply Partner. All payments by Eskimi shall be made within ninety (90)days after the receipt of the invoice from the Company, however only if the payments are receivedfrom the Winning Bidders in relation to the Service.
3.3. Taxes and Expenses. Each Party shall be solely responsible for any taxes, costs or expenses itincurs in connection with performance of its obligations under this Agreement.
3.4. All fees and will be calculated and paid in USD.
3.5. All payment amounts are not final until full adjustments are made. Final payment amounts alongwith reasonably detailed calculations will be reported by the 10th of every following month. Allreported amounts for the purposes of billing would be based on the Eskimi Platform reports.
3.6. The minimum threshold of payment by Eskimi to the Company is 500$ (five hundred dollars). Allmonthly payments lower than 500$ (five hundred dollars) will be added to next month's invoices untilthe minimum threshold is reached.
3.7. Payment Netting. If on any date, properly documented and established amounts would otherwise bepayable toor by a Party to another Party, then, on such date, each such Party’s obligation to makepayment of any such amount shall be automatically satisfied and discharged and if the aggregateamount that would otherwise have been payable by one Party exceeds the aggregate amount thatwould otherwise have been payable by such other Party, then such obligation shall be replaced byan obligation of the Party owing the larger aggregate amount, which obligation shall be equal to thedifference between the larger aggregate and the smaller aggregate amount.
4.1. Targeting Data and User Data may be used by the Company solely for (i) the purpose of informingdecisions related to bidding on Ad Inventory pursuant to the terms of this Agreement, and (ii)forecasting purposes.
4.2. The Company will not use Target Site Data associated with Ad Inventory to create or add to Userprofiles or targeting segments that identify visitors to the Target Site.
4.3. Performance Data may be used for internal purposes by the Company, including but not limited tooptimization, forecasting and analytics and externally (i) to support reporting requirements of DSP toits Affiliates and other advertiser customers, and (ii) on an anonymous, aggregated basis, as part ofcase studies or similar published materials, provided that such Performance Data does not identify,permit identification of, and is not otherwise attributed or attributable to the SSP or any ContentProvider.
4.4. If the Parties share Personal Data, each party processes the personal data transferred under thisAgreement and implements the requirements of the Data Protection Legislation separately asindependent data controllers within the meaning of the Data Protection Legislation.
4.5.In the event that the Company receives Personal Data from Eskimi, the Company shall use the datafor the purposes outlined in the latest valid version of the Transparency and Consent Frameworkand in accordance with the Data Protection Legislation.
5.1. Company Representations and Warranties. Company represents and warrants to ESKIMI that: (i) Company has all necessary rights for Advertising, Ad Inventory and technology for the purposes described herein; (ii) Company has the power and authority to enter into and perform Company’s obligations under this Agreement and this Agreement has been duly authorized under Company’s organizational documents and by-laws; (iii) Company is subject to no contractual or legal restrictions that would impair its ability to perform its obligations under this Agreement.
5.2. Eskimi Representations and Warranties. ESKIMI represents and warrants to Company that: (i) Eskimi has all necessary rights to the Eskimi Platform, and agreements in place with the Content Providers and Registered Bidders for the purposes of this Agreement, as it may be applicable; (ii) Eskimi has the power and authority to enter into and perform its obligations under this Agreement and this Agreement has been duly authorized under Eskimi organizational documents and by-laws; and (iii) to the best of Eskimi knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement.
5.3. DISCLAIMER - EXCEPT AS EXPRESSLY SET FORTH INTHIS SECTION 5, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
5.4. Eskimi shall not be responsible for emergency cases and will not assume responsibility for server downtime, server delayed response time, network issues, or any other issues caused by interruption or intermittent issues of the underlying third-party hosting service provider.
Each Party agrees that all business, technical and financial information it obtains from the other Party is the confidential property of the disclosing Party (“Confidential Information” of the disclosing Party). Except as expressly allowed herein, the receiving Party will hold in confidence and not use or disclose any Confidential Information of the disclosing Party. The receiving Party shall not be obligated under this Section 7 with respect to information the receiving Party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving Party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the other Party; or (iv) was independently developed by employees or consultants of the receiving Party without access to such Confidential Information.
7.1. DISCLAIMER. EXCEPT FOR ANY CLAIMS ARISING FROM (I) WILLFUL MISCONDUCT, (II) BREACH OF SECTION 6 (CONFIDENTIALITY) AND/OR (III) THE INDEMNIFICATION OBLIGATIONS INSECTION 8 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR (I) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR BUSINESS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
7.2. LIMITATION. EXCEPT FOR ANY CLAIMS ARISING FROM (I) WILLFUL MISCONDUCT, (II) BREACH OF SECTION 6 (CONFIDENTIALITY) AND/OR (III) THE INDEMNIFICATION OBLIGATIONS INSECTION 8 HERE OF, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS, IN THE AGGREGATE, ARISING UNDER OR ELATING TO THIS AGREEMENT IS LIMITED TO THE WINNING BID PRICES PAID TO SSP BYDSP UNDER THIS AGREEMENT IN THE THEN-PRIOR SIX (6) MONTH PERIOD.
8.1. Company agrees to defend, indemnify, and hold Eskimi and its officers, directors, employees, agents and representatives (collectively, “Eskimi Indemnified Parties”) harmless from any third party liability, damages, costs and expenses, including reasonable attorneys’ fees, awarded to such third party by a court of applicable jurisdiction arising from: (i) a breach of any material representation or warranty provided by Company under this Agreement; (ii) a claim that the Advertising, Company technology or related content infringes or misappropriates any third party intellectual property right; or (iii) a claim that the Advertising or related content is libelous or defamatory or otherwise violates the rights of any third party. Eskimi will promptly notify Company in writing of any such claim. Eskimi shall give Company sole control over the defense and/or settlement of any such claim, except that Company will not agree to any settlement or compromise that would require any of the ESKIMI Indemnified Parties to make any payments or bear any obligations unless Company obtains ESKIMI’s prior written approval. Eskimi shall give the Company reasonable assistance in such defense at Bidder’s expense.
8.2. Eskimi agrees to defend, indemnify, and hold Company and its officers, directors, employees, agents and representatives (collectively, “Company Indemnified Parties”) harmless from any third-party liability, damages, costs and expenses, including reasonable attorneys’ fees, awarded to such third party by a court of applicable jurisdiction arising from a claim that the Eskimi Platform infringes or misappropriates any third party intellectual property right. Company shall give Eskimi sole control over the defense and/or settlement of any such claim, except that Eskimi will not agree to any settlement or compromise that would require any of the Company Indemnified Parties to make any payments or bear any obligations unless Eskimi obtains Company’s prior written approval. Company shall give Eskimi reasonable assistance in such defense at Eskimi expense.
9.1. This Agreement shall have the initial term of twelve (12) months, beginning on the Effective Date and auto renew for successive 12-month increments on each anniversary of the Effective Date (the “Term”), unless either Party provides written notice of termination at least thirty (30) days prior to such renewal.
9.2. Either Party may terminate this Agreement for any or no reason upon thirty (30) days prior written notice; provided that the Service resulting from any Winning Bids in relation to the Service shall continue for the duration of the time period for which the applicable Advertising is displayed on the Ad Inventory.
9.3. Notwithstanding the foregoing, either Party may terminate this Agreement, including any ongoing Service for then-current Winning Bids, if the other Party materially breaches this Agreement, provided that the breaching Party is given thirty (30) days’ notice in which to cure the breach.
9.4. All provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the Parties, their successors and permitted assigns.
2.1. Independent Contractors. The Parties to this Agreement are independent parties and nothing here in shall be construed as creating an employment relationship between the Parties. Neither Party is an agent or representative of the other Party and neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability, or to otherwise bind, the other Party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
2.2. Entire Agreement. The Agreement, including these General Terms and the Main Terms, exhibits or schedules executed by the Parties, constitutes the entire understanding and agreement with respect to its subject matter, and supersedes any and all prior or contemporaneous representations, understandings and agreements, whether oral or written, between the Parties relating to the subject matter of this Agreement, all of which are merged in this Agreement.
2.3. Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.
2.4. Assignment. This Agreement shall inure to the benefit of and be binding upon the Parties here to, their successors and permitted assigns. None of the rights, duties and obligations of any Party here under may be assigned without the prior written consent of the other Party; provided, however, that each Party may assign this Agreement to the surviving entity in connection with a merger or consolidation in which it participates, or to a purchaser of all, or substantially all, of its assets related to this Agreement so long as such surviving entity or purchaser shall expressly assume, in writing, the performance of all of the applicable terms of this Agreement.
2.5. Governing Law. This Agreement shall be governed by the laws of the United Arab Emirates without giving effect to applicable conflict of laws provisions, if the Main terms do not specify otherwise.
2.6. Dispute resolution. If the Main Terms do not specify otherwise, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Dubai International Arbitration Centre (“DIAC”) in accordance with the Arbitration Rules of the DIAC ("DIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. Disputes arising due to the breach of payment obligations by the Company may be be handed for settlement, by the choice of Eskimi, either to the courts of general competence of the Company’s jurisdiction, or to the courts of jurisdiction of Eskimi, ensuring the most efficient litigation procedure for the Parties.
2.7. Attorney’s Fees. In the event any litigation or other proceeding is brought by either Party in connection with this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to recover from the other Party all reasonable costs, attorneys’ fees and other expenses incurred by such prevailing Party in such litigation.
2.8. Waiver. No waiver of any provision of this Agreement, or any rights or obligations of either Party under this Agreement, shall be effective, except pursuant to a written instrument signed by the Party or Parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The failure of either Party to require the performance of any term of this Agreement or the waiver of either Party of any breach under this Agreement shall not operate or be construed as a waiver of any other provision here of, nor shall it be construed as a waiver of any subsequent breach by the other Party here to.
2.9. Amendment. These General terms may be unilaterally amended by Eskimi from time to time by informing the Company. The Company agrees to comply with the latest version of the General Terms.
2.10. Force Majeure. Either Party shall be excused from any delay or failure in performance hereunder (excluding payment obligations) caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, common carrier interruptions, breakdown in facilities and government requirements. Notwithstanding the foregoing, a change in economic conditions or technology shall not be deemed a force majeure. The obligations and rights of the Party so excused shall be extended ona day-to-day basis for the period of time equal to that of the underlying cause of the delay.
2.11. Execution in Counterparts and by E-Mail or Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by e-mailed image or by facsimile and the Parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures and that each Party may use such emailed or facsimile signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
2.12. ACCESS TO SOURCE CODE. Partial or full source code shall not become available to the Company or its employees. The Company agrees not to use any of the available source code in other interests, other projects and agrees not to share it in full or in part with any other third parties. The Company should not make any changes to the source code. Eskimi reserves the right to refuse the service in whole or in part and refuse any refund in cases when such unauthorized modification is detected. In the case of a breach of the proprietary right the Company is obligated to compensate the amount of the loss beard by Eskimi as estimated by the Eskimi at its sole discretion.
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