BY SIGNING UP OR SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING TO BE LEGALLY RESPONSIBLE FOR ADHERING THE FOLLOWING TERMS AND CONDITIONS: These Terms and Conditions define the conditions under which Internet Gateway Service, a limited liability company, with its registered office located at 303 North Glenoaks Blvd. Suite 200, Burbank, CA 91502,which provides hosted ad serving solutions to publisher (the "Client") and has developed a proprietary ad serving application (the "Software") and offers training, maintenance and technical support (the "Support"). The T&Cs constitute an agreement (the "Agreement") between Internet Gateway Service and Client.
Unless otherwise defined herein, capitalized terms shall have the respective meanings assigned to such terms as set forth below:
"Account Data" has the meaning assigned to such term in Section 4(d)(ii).
"Ad Server Tag" means the unique code assigned by Internet Gateway Service to be inserted in a Client's web page which calls upon Internet Gateway Service Software to place an advertisement in Ad Space.
"Advertiser" means each entity with which Client contracts with for the placement of such entity's Advertisements with a Publisher.
"Affiliate" means any corporation or other business entity or concern in which at least 51% ownership interest or control, either directly or indirectly, is held.
"Effective Date" means the latest signature date of this Agreement or the date of Client's online application approval by Internet Gateway Service.
"Internet Gateway Service Servers" means the computer hardware servers owned or controlled by Internet Gateway Service on which we hosts the Software, including their related software, database or internet servers, firewalls and networks necessary for Client to access and use the Software over the internet as contemplated by this Agreement.
"Channel" means each of the subject specific categories that the advertisements are grouped into when presented by each Publisher to end users.
"Confidential Information" means (i) with respect to Client: any and all Account Data or (ii) with respect to Internet Gateway Service: (a) all information relating to Internet Gateway Service's Servers or access thereto, (b) the Software, (c) any information regarding the content, purpose, design or function of the Software, (d) any know-how, technical data or other information, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, marketing or finances that is disclosed to Client by Internet Gateway Service or (iii) with respect to either Party hereto, any and all other information disclosed by either Party to the other which is marked "confidential" or "proprietary". The Parties understand, however, that Confidential Information shall not include any information that either Party can establish by written record (x) is already public knowledge without breach of confidentiality restriction, or (y) was known to such Party prior to its negotiations with the other Party, or (z) that is hereafter rightfully furnished to a Party by a third party without restrictions on disclosure and without breach of confidentiality restriction.
"Documentation" means the on-line help files or written instruction manuals regarding the use of the Software generally made available by Internet Gateway Service to Client.
"Publisher" means each entity with which Client has contracted with for the sale of such entities available advertising space. The term may refer to Client in case of Client owns or controls respective advertising spaces.
"Software" means the applications hosted on Internet Gateway Service's Servers, java script tools and other applications originating from Internet Gateway Service Servers, their accompanying Documentation, if any, and any upgrades thereto as may be implemented by Internet Gateway Service during the term of this Agreement.
"Support" means the training, maintenance and technical support activities related to access to and use of the Software to be provided during the term of this Agreement as described in Exhibit B and C.
"Users" means the aggregate number of Client's, or it's Affiliate's, employees, or consultants that have entered into a confidentiality agreement set forth in Section 9(a) who are authorized to access, via Internet Gateway Service's Servers, and use the Software as set forth in this Agreement.
"Ad Space" means areas on Publisher web pages in which Advertisements will be served by Internet Gateway Service.
"Advertisement" is defined as an image or creative or Java Script tag or Third party ad server tag or html and its contents which are served on the Publisher's Ad Space.
"Impression" is defined as occurring each time an Advertisement appears on the Publisher's Ad Space resulting from a user accessing, visiting or interacting with such Publisher's web site or the Software.
Client desires to obtain (i) the right to access and use the Software and (ii) such Support subject to the terms and conditions set forth herein and Internet Gateway Service m desires to provide such Software and Support on such terms.
NOW, THEREFORE, for good and valuable consideration as further set forth herein, Internet Gateway Service and Client (each a "Party" and collectively the "Parties") agree as follows:
The T&Cs constitute an agreement between Internet Gateway Service and Client. Other contracts and terms, which are not agreed with us in writing, are excluded. Use of the Internet Gateway Service Software by Client is a sufficient acknowledgment that Client has read, agreed and understood the T&Cs. We have the right to amend the T&Cs from time to time at its sole discretion. Client will be notified of such change via email, change notice or posting on our website. The continued use of the Service by Client shall mean the acceptance of such change.
The Software shall be implemented by Internet Gateway Service and accepted by Client as set forth below:
(a) Implementation. Immediately following the Effective Date, we shall implement the Software for Client in accordance with Exhibit C attached hereto. Internet Gateway Service's implementation shall be performed in a workmanlike manner consistent with industry standards and in accordance with Internet Gateway Service's standard services methods, including but not limited to, requirement analysis, system configuration and training.
(b) Acceptance. Upon implementation, Client shall decide, on its discretion, whether to accept the Software or not within Trial Period, which is 30 days or 1,000,000,000 served impressions, whichever occurs first since the day of first served impression. By starting using the Software Client accepts terms and conditions listed in this document. Client is entitled to terminate this agreement without compensating to Internet Gateway Service during Trial Period by sending a written notice to us. If no termination notice is received during Trial Period, Client shall be deemed to have accepted the Software upon the Effective Date.
We will offer Support with respect to access to and use of the Software via Internet Gateway Service's Servers in accordance with the terms set forth on Exhibit B.
(a) Access. Subject to the terms and conditions of this Agreement, Internet Gateway Service hereby grants Client a non-exclusive, non-assignable and non-transferable right to remotely access Internet Gateway Service's Servers and the Software solely for the purpose of using the Software in accordance with Section 4(b) below. Client acknowledges and agrees that such access excludes periods of scheduled and unscheduled maintenance. Client acknowledges that Internet Gateway Service makes commercially reasonable efforts to ensure Ad Serving uptime of 24 (twenty four) hours per day without periods of scheduled maintenance and that Internet Gateway Service makes commercially reasonable efforts to ensure that the trafficking and reporting interface is available for use 24 (twenty four) hours per day, except for periods of scheduled maintenance and occasional unscheduled maintenance.
(b) Software. Subject to the terms and conditions of this Agreement, Internet Gateway Service grants Client a nonexclusive, not assignable and nontransferable right to use the Software, including any Updates only as hosted on Internet Gateway Service's Server and solely for Client's own internal use. Client may permit Users authorized under this Agreement to use the Software as long as each such User remains an employee or consultant of Client or subsidiary as defined in Section 4(c).
(c) Restrictions. The rights granted herein are limited solely to Client and its permitted Users. In the event a permitted User under this Agreement is an employee or consultant of an Affiliate of Client, Client shall: (i) guarantee that such employee or consultant complies with the terms of this Agreement. Unless otherwise agreed by Internet Gateway Service via written notice, Client shall not: (i) attempt to make any copies of the Software; (ii) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software, modify, adapt, create derivative works based upon, or translate the Software; (iii) copy, install or use (except as provided in Section 4(b) above) the Software on any of its computer systems, servers, or networks; or (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Software in any form to any third party, including commercial time-sharing, rental, or service bureau use.
(d) Ownership.
(i) Software: This Agreement does not constitute a sale and does not convey any rights of ownership in or to the Software. Internet Gateway Service is not granting Client any rights whatsoever in the Software source code. All right, title, and interest in the Software and any development efforts, updates, upgrades or modifications thereof, or in any ideas, know-how and programs developed by us or its licensors during the course of this Agreement will remain the property of Internet Gateway Service or its licensors.
(ii) Account Data: As between Internet Gateway Service and Client, Client shall own the usage information and traffic patterns specific to use of the Software, (the "Account Data"). Notwithstanding the foregoing, Internet Gateway Service shall have the right to use such Account Data as reasonably necessary to perform its obligations under this Agreement and to improve its services. In addition, Internet Gateway Service shall have the right to collect, use and distribute Account Data in the aggregate (aggregate of Account Data of many Internet Gateway Service customers) so long as any aggregated data provided to any third party does not allow any third party to determine or identify any Account Data specific to Client. Examples of such aggregate data include the % of ads served that are Flash Ads or the % of ads served that are served to Firefox browsers.
