Terms of Service

ONESCREEN AI, INC.

TERMS AND CONDITIONS OF SERVICE

Welcome to OneScreen AI!

These terms and conditions are a legal agreement (this “Agreement”) between you (together with the business entity, if any, that you represent, “You” or “Your” or “Client”) and OneScreen AI, Inc., with offices at 50 Mayflower Road, Needham MA 02492 (“OneScreen” or “we”, “us” or “our”), establishing terms and conditions under which You shall access and use the services and features available through the OneScreen Device (as defined below) and on OneScreen’s content auction network via its Website (“Auction Platform”, together with the OneScreen Device, collectively, the “OneScreen Platform”). The OneScreen Platform enables advertisers referenced on the corresponding Insertion Order (as defined below) or identified by the information entered by advertiser into the OneScreen Platform (the “Advertisers”) to upload their images and video or static advertisements on designated public facing screens, and for screen hosts (“Screen Hosts”) holding an account with OneScreen to display and distribute the Advertiser’s offers through a device located at Screen Host’s premises. You may be accessing or using the OneScreen Platform as an Advertiser and/or a Screen Host. The OneScreen Platform is located at https://www.onescreen.ai/ and any related sub-domains, tools and services or through downloadable mobile or other applications (“OneScreen Apps”) through which the OneScreen Platform is made available by OneScreen from time to time (the “Website(s)”). The date You first agree to this Agreement is referred to herein as the “Effective Date.” Your use of the OneScreen Platform is also subject to our Privacy Policy available on our Website from time to time. You acknowledge and agree that the features and functionality of the OneScreen Platform are expected to change frequently.

BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE SERVICES, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE ONESCREEN PLATFORM AND/OR THE SERVICES FROM YOU ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK “I ACCEPT” AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES.

FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND ONESCREEN ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 14 “AGREEMENT TO ARBITRATE”).

AGREEMENT

1.                Definitions.

1.1             Action” means the completion of any necessary step by a Customer (as defined below), with respect to Client Content that has been displayed through a Screen Host, as determined by OneScreen in its sole discretion.

1.2             Activation Date” means the earlier of the date on which You click the “I Accept” button, or the date that Advertising Services are first made available to You for your use in accordance with this Agreement.

1.3             Advertising Services” means those advertising services offered from time to time by means of the OneScreen Platform, including through the OneScreen Device, excluding the Ancillary Services.

1.4             Affiliate” means any corporation or entity of either party, which is owned or controlled by or under common control with a party. For purposes of this definition, “control” shall mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.

1.5             Ancillary Services” means any installation, implementation, support, training, consulting, or other professional services provided by OneScreen to Screen Hosts hereunder in connection with the OneScreen Device.

1.6             Client Content” means content, data or information uploaded to and stored in the OneScreen Platform by the Client, as an Advertiser or Screen Host, or otherwise observed by the OneScreen Device, including Observed Data (as defined below), in connection with Client’s use of the OneScreen Platform. Client Content includes Screen Host Content where You are a Screen Host hereunder.

1.7             Client System” means Client’s website(s), systems, servers and other equipment and software used in Client’s business.

1.8             Customer” shall have the meaning set forth in Section 2.5(a).

1.9             Documentation” means any proprietary user documentation made available to Client by OneScreen, including any documentation available on the OneScreen Platform or otherwise, as amended or updated by OneScreen from time to time in its discretion.

1.10          Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

1.11          Insertion Order means an order for the purchase by Client of Advertising Services provided through the OneScreen Platform and/or for Ancillary Services, as mutually agreed by the parties through the OneScreen Platform from time to time.

1.12          OneScreen Device” means a proprietary device, owned by OneScreen, intended to be plugged into a screen on Screen Host’s premises.

1.13          PII” means information that can be used to identify, contact, locate, distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual. For the sake of clarity, PII shall exclude prohibited information as outlined in Section 10.1(b).

1.14          Registration Information” means the information (i) set forth in the Insertion Order or that Client otherwise provides in connection with ordering the Advertising Services contemplated by such Insertion Order and/or (ii) that Client provided via our OneScreen Platform with information regarding its Users, the Subscription Term and certain other details regarding Client and its use of the OneScreen Platform, including the OneScreen Device, as Client may update such information from time to time.

1.15          Screen Host Content” means content submitted to the Screen Host by the Advertisers via the OneScreen Platform, and uploaded to and stored on the OneScreen Platform by the Screen Host, or otherwise made available to the OneScreen Platform by the Screen Host, including Registration Information, which may include logos, trademarks, images, marketing materials and the like.

1.16          Screen Host Portal” means a subdomain on the Website through which a Screen Host may view, approve or deny proposed Screen Host Content via the OneScreen Platform.

1.17          Services” means Advertising Services and/or Ancillary Services, as applicable.

1.18          Subscription Term” means the subscription period, commencing on the Activation Date for the applicable Advertising Services, as set forth in an Insertion Order for the relevant Advertising Services purchased pursuant to such Insertion Order.

1.19          Users” means the Client and employees, agents, contractors, or representatives of Client who are authorized by Client to use the OneScreen Platform and the Advertising Services and who have been supplied user identifications and passwords by Client pursuant to Section 5.1, as set forth in the Registration Information.

2.                ADVERTISER Use.

2.1             Provision of Advertising Materials; License Grant. Advertiser shall provide all Client Content for provision to Screen Hosts in accordance with this Agreement. All changes made by Advertiser to Client Content must be made in writing (and prior to the date on which such Client Content is to be published) or through other processes available through the OneScreen Platform. Advertiser hereby grants to OneScreen a non-exclusive, worldwide, perpetual, fully paid license to use, perform, reproduce, display, publish, transmit and distribute the Client Content and all content therein through Screen Hosts in accordance with this Agreement. Advertiser acknowledges that OneScreen’s Services are dependent upon Advertiser’s provision of such Client Content and related Registration Information.

2.2             Right to Reject Advertisement. All Client Content must comply with the advertisement standards and policies annexed hereto as Appendix 1 (as the same may be amended from time to time by OneScreen), and are subject to OneScreen's, and for any display location, the applicable Screen Host’s, prior approval. OneScreen and each Screen Host reserves the right, in its sole discretion, to reject any Client Content, Insertion Order, or URL link, at any time, for any reason whatsoever (including, but not limited to, belief by OneScreen or such Screen Host that any placement thereof may subject OneScreen or such Screen Host to any liability). Notwithstanding the foregoing, OneScreen agrees to use commercially reasonable efforts not to exclude Client Content from the process described in Section 2.4 due to inventory demand from other Advertisers. Advertiser remains responsible and liable for the selection, content, and display of any advertisement, URL link, contact information, and Insertion Order.

2.3             Unavailable Advertisement Materials. Once a campaign for the display of Client Content (a “Campaign”) has begun through the Auction Platform, if either OneScreen or Advertiser chooses to terminate such Campaign, OneScreen shall have the right to publish in substitution thereof any prior acceptable Client Content submitted by Advertiser until such time as OneScreen can reasonably begin publication of Advertiser's desired, approved Client Content.

2.4             Auction; Optimization and Positioning.

(a)              OneScreen or its Screen Host will electronically transmit non-personally identifiable information regarding the Screen Host’s location (the “Target Information”) to the OneScreen Platform. The OneScreen Platform is designed to (i) identify the Advertiser that has indicated it will pay the highest price to display its Client Content in light of the Target Information, and the targeting parameters in its Insertion Order, and (ii) display that Client Content. The price for displaying Client Content via the OneScreen Device will be established through the auction and pricing mechanism of the OneScreen Platform, as described on the OneScreen Platform or applicable Insertion Order from time to time. The OneScreen Platform is designed not to display Client Content at a price exceeding the maximum identified by Advertiser in its Insertion Order.

(b)             Advertiser may in good faith optimize its campaign by loosening restrictions specified in the Insertion Order. Positioning of Client Content on the Client System hosted by the Screen Host, the location, position, shape and dimensions of the Client System, the existence, if any (and content, if applicable) of any other content on the screen, and all other elements regarding any Client Systems are at OneScreen's sole discretion, unless otherwise expressly agreed in the Insertion Order.

2.5             Terms of Payment.

(a)              Insertion Orders, or, if there is no Insertion Order, the Registration Information or other agreement through the Auction Platform, will provide for fees for the Advertising Services. Advertiser shall pay to OneScreen the subscription fees and charges for the Advertising Services for the applicable Subscription Term as set forth in the relevant Insertion Order (the “Subscription Fees”). Such Subscription Fees shall include payment for all compensable Actions taken by Advertiser’s customers or potential customers (“Customers”), with respect to Advertiser’s Client Content displayed by Screen Host(s). All Actions will be tracked by OneScreen. Advertiser agrees not to modify, disable or re-direct links, contact information provided to OneScreen, other Client Systems or in any way knowingly impede or impair OneScreen’s ability to track Actions. OneScreen may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Advertiser’s then-current Subscription Term will not change until the expiration of such then-current Subscription Term.

(b)             Following the Activation Date for any Services, unless otherwise expressly set forth in the relevant Insertion Order, Advertiser will fund its Campaign by depositing its entire budget for the Campaign onto the OneScreen Platform. OneScreen will deduct the price for each compensable Action taken by a Customer upon the occurrence of each such Action. Each Campaign will be deemed complete upon the depletion of the amounts deposited. Advertiser agrees that only information (including with respect to advertisements and compensable Actions) determined by OneScreen is final and binding, subject to the dispute process set forth in subsection (c) below. OneScreen may, in its sole discretion, grant advertising credits, by depositing any such credits into the OneScreen Platform for Advertiser’s account. Any such credits shall be subject to the terms and conditions, qualifications and/or requirements or criteria for use, including without limitation expiration dates, that OneScreen determines, in its sole discretion. All amounts deposited under this Agreement will be made without setoff or counterclaim, and without any deduction. All payments or deposits under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires Advertiser to withhold.

(c)              Advertiser will have fifteen (15) days from the recording in Advertiser’s account on the OneScreen Platform of an Action to dispute such Action, which notice of dispute must be received by OneScreen in writing along with any applicable documentation of the dispute. Advertiser must provide all available proof to support any dispute it makes or any allegation of any fraudulent activity including, at a minimum, the reason a recorded Action is invalid, the Action date/time stamp, and the location of the screen on which the Client Content was displayed. Fraudulent activity does not include duplicates, credit card charge backs or Customers entering incorrect information. Advertiser’s pixel must fire in real time and all pixel fires will be counted as valid Actions unless proof of fraudulent activity is provided as detailed herein. Advertiser agrees that it will not scrub Actions for any reason other than fraud as detailed herein. The Parties agree in good faith to discuss any disputes and attempt to reach a mutually acceptable agreement, provided that the final determination shall be in OneScreen’s sole discretion.

(d)             All payments deposited must be in U.S. dollars. Applicable taxes shall be the responsibility of Advertiser, and shall be deducted from deposited amounts.

2.6             Reporting and Statistics. OneScreen will maintain analytics and statistics, including with respect to impressions and Actions, on the OneScreen Platform, and Advertiser acknowledges that such statistics provided by OneScreen are the official and definitive measurements of OneScreen's performance. OneScreen will provide Advertiser with password-protected access to online reporting information available to twenty four (24) hours per day so that Advertiser may monitor its Campaign. Any person who gains access to the OneScreen Platform through Advertiser, whether or not rightfully (other than through the gross negligence or willful misconduct of OneScreen), will be deemed to be an agent of Advertiser hereunder. Advertiser is responsible to ensure that it does not provide access to the OneScreen Platform to any person not authorized by it to have such access for the sole purpose of assisting Advertiser in connection with its Campaign. No other measurements or usage statistics (including those of Advertiser or any third party) shall be accepted by OneScreen or have any effect on this Agreement. An "impression" means each time a single person has been exposed to Client Content during a display of Client Content, as determined by the OneScreen Platform.

2.7             No Assignment or Resale of Advertisement Space. Advertiser may not resell, assign, or transfer any of its rights hereunder. Any attempt by Advertiser to resell, assign, or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to OneScreen.

2.8             Advertiser's Representations and Warranties. Advertiser represents and warrants to OneScreen and third parties (if any), (a) that Advertiser holds all necessary rights to permit the display of its Client Content under this Agreement; (b) all Client Content does and will function properly, including proper pixel placement, that the correct creatives and information are provided, and that the Client Content does and will comply with this Agreement, including Appendix 1 (as the same may be amended from time to time), and (c) that the use, performance, reproduction, distribution, publication, transmission or display of any Client Content, any data regarding Customers, and any material to which Customers can link or otherwise connect, contact or access any products or services made available to Customers, through the Client Content will not (i) violate any laws, including without limitation, any applicable privacy laws, or any rights of any third parties; or (ii) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Advertiser is fully responsible and liable for all Client Content, including without limitation, all claims made in any Client Content, all products and services advertised therein, and any materials to which Customers can link through or otherwise connect, contact or access via the Client Content.

3.                Screen Host Use.

3.1             Provision of Hardware; License to Display Advertisements. OneScreen’s obligations under this Section 3 of are subject to Screen Host’s provision of Client Systems in accordance with this Agreement (as the same may be amended from time to time by OneScreen. All changes made by Screen Host regarding the display of an advertisement must be made in writing (and prior to the date on which such Client Content is to be published). Advertiser hereby grants to Screen Host a non-exclusive, non-transferable, limited, fully paid license to display, publish, transmit and distribute the advertisement and all content therein on its Client Systems in accordance with this Agreement.

3.2             Use of OneScreen Device; Obligation to Return. OneScreen hereby agrees to loan Screen Host one or more OneScreen Devices at no charge to the Screen Host. THE ONESCREEN DEVICE REMAINS THE PROPERTY OF ONESCREEN. YOU SHALL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (OTHER THAN ORDINARY WEAR AND TEAR) TO SUCH ONESCREEN DEVICE. Screen Host shall Activate (as defined below) the OneScreen Device in accordance with the terms of its Insertion Order. The OneScreen Device shall be deemed “Activated” when the OneScreen Device is initially plugged into the Client System of a Screen Host as designated in the Insertion Order governing the use of such OneScreen Device, and powered on such that the Client System visibly displays, or is able to visibly display, Client Content and detect the presence of, and collect information from, other devices in accordance with its functionality. Screen Host irrevocably agrees to return the OneScreen Device to OneScreen if the OneScreen Device is (i) not Activated within thirty (30) days of delivery, receipt or installation of the OneScreen Device, or (ii) unplugged from the Screen Host monitor or otherwise deactivated for thirty (30) days or longer. Notwithstanding the foregoing, Screen Host agrees to return to OneScreen any and all OneScreen Devices upon termination of the Subscription Term, at Screen Host’s own expense. Screen Host agrees to pay $500.00 for each OneScreen Device not returned to OneScreen in working condition for any reason; You shall pay such amount within thirty (30) days of receipt of an invoice from OneScreen; OneScreen may choose to deduct such amount from any amounts owed to You hereunder.

3.3             Right to Reject Advertisement. All Client Content must comply with the advertisement standards and policies annexed hereto as Appendix 1 (as the same may be amended from time to time by OneScreen), and are subject to OneScreen's, and for any display location, the applicable Screen Host’s, prior approval. OneScreen and each Screen Host reserves the right, in its sole discretion, to reject any advertisement, Insertion Order, or URL link, at any time, for any reason whatsoever (including, but not limited to, belief by OneScreen or such Screen Host that any placement thereof may subject OneScreen or such Screen Host to any liability). It is the sole responsibility of Screen Host to ensure that any Client Content displayed on its Client Systems complies with applicable laws, ordinances, rules and regulations, and Screen Host remains responsible and liable for any violations thereof.

3.4             Screen Host Payments. Unless otherwise specified in an Insertion Order, OneScreen shall make payments to Screen Hosts on a monthly basis in an amount equal to twenty percent (20%) of OneScreen’s monthly revenues for all Client Content distributed through such Screen Host’s OneScreen Device(s) during that month, minus (i) OneScreen’s operating expenses on a per OneScreen Device basis and (ii) any deductions based on improperly functioning Client Systems or improperly displayed Client Content on Client Systems. OneScreen shall make such payments thirty (30) days after the last day of each month in which such revenues were collected.

3.5             No Assignment or Resale of Advertisement Space. Screen Host may not sell, assign, or transfer any of its rights hereunder unless agreed by Screen Host and OneScreen in a separate agreement (“Reseller Addendum”) from time to time. Any attempt by Screen Host to sell, assign, or transfer such rights, unless approved in a Reseller Addendum, shall result in immediate and automatic termination of this Agreement, without liability to OneScreen.

3.6             Observed Data. Client acknowledges that OneScreen will actively monitor and collect information regarding: (i) the use and performance of the OneScreen Platform, (ii) the number of, and the anonymized mobile device information of, persons near a OneScreen Device, (iii) data regarding interactions between the mobile devices and information displayed on Client monitors, and (iv) any other data gathered from such mobile devices (such data, “Observed Data”). Client acknowledges that the Observed Data will belong to OneScreen. Client agrees that it will not, and it will not attempt, to monitor, use, copy, intercept, collect, block, change, commercialize or destroy the Observed Data.

3.7             Screen Host Representations and Warranties. Screen Host represents and warrants to OneScreen and third parties (if any), (a) that Screen Host holds all necessary rights to permit the display of the Client Content on its Client Systems under this Agreement; (b) all Client Systems do and will function and display properly, and that the display of Client Content does and will comply with this Agreement and applicable law, and (c) that the use, performance, reproduction, distribution, publication, transmission or display of any Client Content, any data regarding Advertiser’s Customers, and any material to which Advertiser’s Customers can link or otherwise connect, contact or access any products or services made available to Customers through the Client Content, will not (i) violate any laws, including without limitation, any applicable privacy laws, or any rights of any third parties; or (ii) display any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Screen Host is fully responsible and liable for the display of all Client Content that it displays.

4.                ONESCREEN Subscription.

4.1             Advertising Services. During the Subscription Term and subject to the terms and conditions of this Agreement, Client may purchase Advertising Services pursuant to Insertion Orders. Each Insertion Order is deemed incorporated into this Agreement by reference.

4.2             Access and Use. Subject to the terms and conditions of this Agreement, OneScreen hereby grants to Client, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Advertising Services, including via the OneScreen Platform, in accordance with the Documentation, solely for Client’s internal business and not for the benefit of any other person or entity. Client agrees that its purchases under this Agreement are neither contingent on the delivery of any future functionality or features of the OneScreen Platform nor dependent on any oral or written public comments made by OneScreen regarding future functionality or features. For the avoidance of doubt, Client and its Users will not have the right to access or use the OneScreen Platform except for the access and use of Advertising Services through the OneScreen Platform as provided in this Section 4.2 and in connection with any Ancillary Services.

4.3             Modifications. OneScreen reserves the right to modify the OneScreen Platform, or portions thereof, from time to time by adding, deleting, discontinuing, or modifying features to improve the user experience; provided, however, that during the Subscription Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the OneScreen Platform. OneScreen will use commercially reasonable efforts, but shall not be required, to provide sixty (60) days’ written notice prior to the discontinuation of any feature.

4.4             Restrictions. Client shall not, directly or indirectly, and Client shall not permit any User or third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the OneScreen Platform; (ii) modify, translate, or create derivative works based on any element of the OneScreen Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Advertising Services or OneScreen Platform; (iv) use the Advertising Services or OneScreen Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Client, its Users and Client’s direct clients; (v) remove any proprietary notices from the Documentation; (vi) publish or disclose to third parties any evaluation of the Advertising Services, or OneScreen Platform without OneScreen’s prior written consent; (vii) use the Advertising Services or OneScreen Platform for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Advertising Services or OneScreen Platform; or (ix) attempt to gain unauthorized access to the Advertising Services or OneScreen Platform.

4.5             Screen Host Portal. The Services may enable the Screen Host to establish a Screen Host Portal for use by the Screen Host and Advertisers through the OneScreen Platform. The Screen Host shall be solely responsible for the Screen Host Content loaded onto such Screen Host Portal.

4.6             Hardware and Software. Client is responsible for (i)  obtaining, deploying and maintaining the Client System, and all computer hardware, software, modems, routers and other equipment necessary for Client and its Users to access and use the Advertising Services or OneScreen Platform via the internet, including the OneScreen Device; (ii) contracting with third party ISP, telecommunications and other service providers to access and use the Advertising Services or OneScreen Platform via the internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing. Other than with respect to provision of the OneScreen Device, OneScreen shall not be responsible for supplying any hardware, software or other equipment to Client under this Agreement.

4.7             Ancillary Services. The parties may agree, from time to time, to Ancillary Services to be provided by OneScreen to Client pursuant to an Insertion Order.

4.8             Interactions and Financial Arrangements between Screen Hosts and Advertisers. Any interactions between Screen Hosts and Advertisers which arise from Client’s use of the OneScreen Platform are solely at Client’s risk. It is strictly forbidden for a Client to share financial or other information directly with any other Client in furtherance of any purpose for which such Client has subscribed to the Services.

4.9             Content Quality. If You are an Advertiser, You agree and acknowledge that, as between You and OneScreen, (i) any Advertising Services You purchase from OneScreen are at Your sole risk and (ii) OneScreen is not responsible for the quality or correctness of the Client Content or the Screen Host Content, which is at Your sole risk. If You are a Screen Host, You agree and acknowledge that Your supply of Client Systems, screens or other digital display devices to any Advertisers through OneScreen is at Your sole risk.

5.                PASSWORDS; SECURITY.

5.1             Passwords. OneScreen will issue to Client and/or authorize a Client account manager to create and issue to each User, a user login and password for access and use of the Advertising Services and the OneScreen Platform. Client and its Users are responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Client is solely responsible for any and all access and use of the Advertising Services or OneScreen Platform that occurs under Client’s account. Client shall restrict its Users from sharing passwords. Client agrees to immediately notify OneScreen of any unauthorized use of Client’s or any User’s account and/or login and password, or any other breach of security known to Client. OneScreen shall have no liability for any loss or damage arising from Client’s failure to comply with the terms set forth in this Section.

5.2             Security. OneScreen will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Client Content stored by OneScreen on the OneScreen Platform in connection with Client or its Users’ operation of the OneScreen Platform. OneScreen will exercise reasonable efforts to deploy corrections within the OneScreen Platform for security breaches made known to OneScreen.

5.3             No Circumvention of Security. Neither Client nor any User may circumvent or otherwise interfere with any user authentication or security of the OneScreen Platform. Client will immediately notify OneScreen of any breach, or attempted breach, of security known to Client.

5.4             No Guaranty of Security. Client acknowledges that, notwithstanding the security precautions deployed by OneScreen, the use of, or connection to, the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the OneScreen Platform and Client Content. OneScreen cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the internet or otherwise or that any such security precautions will be adequate or sufficient.

6.                Other FEES.

6.1             Other Fees. Client shall pay to OneScreen the fees, if any, set forth in an Insertion Order, or as set forth in the Registration Information for Ancillary Services, together with any pre-approved out-of-pocket expenses that may be incurred by OneScreen or its personnel in connection with the Ancillary Services, including any travel expenses.

7.                REPRESENTATIONS AND WARRANTIES.

7.1             No Warranty.

(a)              ONESCREEN MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. ONESCREEN DOES NOT WARRANT THAT ONESCREEN'S DELIVERY OF SERVICES OR ADVERTISEMENTS HEREUNDER WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS.   THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

7.2             Client Warranties.

(a)              Client System Warranty. Client represents and warrants that Client has the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to provide OneScreen access to and use of the Client Content, including without limitation, for use in connection with the Advertising Services or OneScreen Platform.

(b)             Screen Host Content Quality and Correctness Warranty. Screen Host warrants and represents to OneScreen and all Advertisers that all Screen Host Content provided by such Screen Host shall be correct and complete when provided and that Screen Host shall update such Screen Host Content when errors are identified.

(c)              Other Client Representations and Warranties. Client represents, warrants and covenants that: (a) Client has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) Client’s execution of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by Client to any third party to keep any information or materials in confidence or in trust.

7.3             Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE ONESCREEN PLATFORM AND ADVERTISING SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. CLIENT’S USE OF THE ONESCREEN PLATFORM AND ADVERTISING SERVICES IS AT ITS OWN RISK. ONESCREEN DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ADVERTISING AND OTHER SERVICES, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ONESCREEN DOES NOT WARRANT THAT ONESCREEN'S DELIVERY OF THE SERVICES OR SCREEN HOST CONTENT HEREUNDER WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS. ONESCREEN DISCLAIMS ALL LIABILITY FOR THE LOSS OF DATA ENTERED INTO OR SAVED IN THE ONESCREEN PLATFORM.

NO CLIENT OF ONESCREEN IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF ONESCREEN AS SET FORTH HEREIN. ONESCREEN DOES NOT WARRANT THAT THE ADVERTISING SERVICES OR ONESCREEN PLATFORM ARE OR WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES AND AGREES THAT THE ONESCREEN PLATFORM (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE ONESCREEN PLATFORM OR ADVERTISING SERVICES. ACCORDINGLY, CLIENT SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

8.                INDEMNIFICATION.

8.1             OneScreen Indemnity. OneScreen shall, subject to the terms and conditions set forth in this Agreement, (i) defend Client from and against any and all third party claims, actions, suits, demands or proceeding brought against Client (a “Claim”) alleging that Client’s use of the OneScreen Platform and Advertising Services in accordance with the terms of this Agreement infringes any United States copyright or United States patent issued as of the Effective Date, and (ii) indemnify and hold harmless Client against any damages awarded to the third party bringing the Claim or any settlement amount approved by OneScreen in writing and paid to the third party bringing the Claim in order to settle the Claim. OneScreen’s obligations under this Section are conditioned upon (i) OneScreen being promptly notified in writing of such Claim, (ii) OneScreen having the exclusive right to control the defense and/or settlement of the Claim, and (iii) Client providing all reasonable assistance (at OneScreen’s request and expense) in the defense of the Claim. In no event shall Client settle any Claim without OneScreen’s prior written approval. Client may, at its own expense, engage separate counsel to advise Client regarding a Claim and to participate in the defense of the Claim, subject to OneScreen’s right to control the defense and settlement.

(a)              Mitigation. In the event of any such third party Claim or threat thereof, OneScreen, at its sole option and expense, may (i) procure for Client the right to continue to use the allegedly infringing Advertising Services or OneScreen Platform, or (ii) replace or modify the OneScreen Platform with functionally equivalent software and/or Services. If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of OneScreen, OneScreen may terminate this Agreement with respect to the allegedly infringing Advertising Services or OneScreen Platform, and the license thereto granted hereunder, upon fifteen (15) days written notice to Client. In the event of such termination, OneScreen shall refund to Client any portion of Subscription Fees paid to OneScreen by Client for use of the allegedly infringing Advertising Services or OneScreen Platform following the date of such termination.

(b)             Exclusions. Notwithstanding anything to the contrary in this Agreement, OneScreen shall have no obligations to Client pursuant to this Section 8.1 with respect to any infringement or alleged infringement resulting or arising from (1) any modifications to the OneScreen Platform made by any person or entity other than OneScreen that is not previously approved by OneScreen, (2) any use of the OneScreen Platform or Advertising Services by Client or its Users beyond the scope of the express rights and licenses granted in an Insertion Order or in this Agreement, (3) any use of the Advertising Services or OneScreen Platform in combination with other service, software, hardware or data, or (4) OneScreen’s compliance with Client’s request for changes to the OneScreen Platform or with Client’s designs, specifications or instructions.

(c)              Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF ONESCREEN WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE ADVERTISING SERVICES OR ONESCREEN PLATFORM OR OTHERWISE, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ONESCREEN WITH RESPECT THERETO.

8.2             Advertiser Indemnity. Advertiser shall indemnify and hold harmless, and at OneScreen’s request defend, OneScreen and its Affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) any third party claim or threat thereof that the Client Content (and the exercise of the rights by OneScreen granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Advertiser’s use or alleged use of the Advertising Services or OneScreen Platform (other than claims arising from OneScreen’s breach of this Agreement or from claims subject to Section 8.1); (c) any transactions between Advertiser and any third party, whether Screen Host, another Advertiser or otherwise, or (d) any breach or alleged breach by Advertiser of any of its covenants, representations or warranties set forth in this Agreement. OneScreen shall notify Advertiser promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve Advertiser of its obligations hereunder except to the extent that Advertiser was actually and materially prejudiced by such failure. Advertiser may not settle any claim for which indemnification is sought under this Section without the prior written approval of OneScreen, which approval shall not be unreasonably withheld or delayed.

8.3             Screen Host Indemnity. Screen Host shall indemnify and hold harmless, and at OneScreen’s request defend, OneScreen and its Affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) any third party claim or threat thereof that the Client System (and the exercise of the rights by OneScreen granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Screen Host’s use or alleged use of the Advertising Services or OneScreen Platform (other than claims arising from OneScreen’s breach of this Agreement or from claims subject to Section 8.1); (c) any transactions between Screen Host and any third party, whether another Screen Host, Advertiser or otherwise, or (d) any breach or alleged breach by Screen Host of any of its covenants, representations or warranties set forth in this Agreement. OneScreen shall notify Screen Host promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve Screen Host of its obligations hereunder except to the extent that Screen Host was actually and materially prejudiced by such failure. Screen Host may not settle any claim for which indemnification is sought under this Section without the prior written approval of OneScreen, which approval shall not be unreasonably withheld or delayed.

9.                Confidentiality.

9.1             Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information, including the Observed Data; (iii) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (iv) the terms of this Agreement and any Insertion Order. Confidential Information of OneScreen shall include the OneScreen Platform and Advertising Services. Confidential Information of each Screen Host shall include the Screen Host Content provided by such Screen Host. Confidential Information of each Advertiser shall include such Advertiser’s Client Content. Confidential Information also includes all summaries and abstracts of Confidential Information.

9.2             Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Subscription Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

9.3             Exceptions to Confidential Information. The obligations set forth in Section 9.2 shall not apply to the extent that Confidential Information includes information which: (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. Notwithstanding the foregoing, Client authorizes OneScreen to list Client’s name and logo in a list of customers on OneScreen’s website and marketing materials.

10.             CLIENT CONTENT.

10.1          Client Content. Client, not OneScreen, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and the parties’ respective rights to use all Client Content under this Agreement. Client shall be responsible for obtaining any consents and other rights necessary to collect, submit, use, process, and display Client Content on the OneScreen Platform in connection with the Advertising Services. In addition, where Client is a Screen Host, Screen Host hereby grants to OneScreen and to each Client with access to Screen Host Content, a non-exclusive, royalty-free, license to copy, use, modify and otherwise exploit such Screen Host Content in connection with the provision of the Services to the Screen Host and the Screen Host Portal and to the Client generally.

(a)              Personally Identifiable Information. OneScreen has control over whether any PII is collected and processed by the OneScreen Platform. Client represents and warrants that (i) it will provide all required notice to and obtain all required consent from each Advertiser or other individual regarding the collection, disclosure, analysis and use of Client Content, including any PII, and (ii) that the collection, disclosure, analysis and use of Client Content, as contemplated under this Agreement, complies with all applicable laws, rules and regulations.

(b)             Prohibited Use. Client shall not use the Advertising Services or OneScreen Platform to collect, or otherwise transmit, any sensitive PII, including passwords, credit or debit card number, Social Security number, financial account number or other financial information, driver’s license, passport or other government identification number, health information, or biometric data.

(c)              Privacy Policy. If Client is a Screen Host, Client covenants that it shall post, and comply with, an appropriate privacy policy that complies with all applicable laws and regulations relating to the collection PII.

(d)             Compliance with Laws. Client represents and warrants that it will ensure that the collection and use of information via the Advertising Services complies with all applicable laws, rules and regulations and this Agreement.

10.2          Usage Data. Notwithstanding anything else in the Agreement or otherwise, OneScreen may monitor Client’s use of the Advertising Services and OneScreen Platform and use data and information related to Client Content and Client’s use of the Advertising Services in an aggregate or de-identified manner, including to compile statistical and performance information related to the provision and operation of the OneScreen Platform and Advertising Services. Client agrees that OneScreen may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Client, any of the Client’s Advertisers, or its Confidential Information. OneScreen retains all Intellectual Property Rights in such data and information.

10.3          Sharing between Screen Hosts and Advertisers. Any Client Content or other information You share with any other Screen Host or Advertiser is at your sole risk. OneScreen does not control how any Screen Host or Advertiser utilizes information they receive from any other Screen Host or Advertiser.

11.             PROPRIETARY RIGHTS.

11.1          Ownership. Client acknowledges that the OneScreen Platform and the Advertising Services, and all Intellectual Property Rights therein, including the Documentation and the Observed Data, are the sole and exclusive property of OneScreen and its licensors. OneScreen acknowledges that the Client System, and all Intellectual Property Rights therein, is the sole and exclusive property of Client and its licensors. Each party retains all other rights not expressly granted in this Agreement.

11.2          OneScreen Developments. All inventions, works of authorship and developments conceived, created, written or generated by or on behalf of OneScreen, whether solely or jointly, including without limitation, in connection with OneScreen’s performance of the Ancillary Services hereunder (“OneScreen Developments”), including all Intellectual Property Rights therein, shall be the sole and exclusive property of OneScreen.

11.3          License to Client Content and Client Content. Client grants to OneScreen a royalty-free, nonexclusive, irrevocable, limited right and license to use the Client Content and Screen Host Content (a) in order to provide the Advertising Services; (b) to analyze and improve OneScreen and the Advertising Services; and/or (c) to compile and use aggregate or de-identified data, statistics, measurements or other metrics derived from Client Content and Screen Host Content (including in combination with the aggregate or de-identified customer data of other OneScreen customers) for its own purposes. Aggregate or de-identified data means data that does not identify any Client or individual.

11.4          Disclosure of Client Content. OneScreen shall not disclose Client Content to third parties, except: (i) as necessary to provide the Advertising Services to you; (ii) to our service providers who are not permitted to use such data except on behalf of OneScreen, (iii) as required by law or to comply with legal process; (iv) to protect and defend the rights or property of OneScreen, including as evidence in litigation; (v) to troubleshoot problems with the Advertising Services; (vi) to any successor in interest, including as part of a merger, acquisition or transfer of assets, or as part of a bankruptcy proceeding; or (vii) in aggregate or de-identified form.

11.5          Limited Feedback License. Client hereby grants to OneScreen, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Client’s Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the OneScreen Platform and OneScreen Developments provided by or on behalf of Client to OneScreen, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the OneScreen Platform or any other products or services. Feedback is provided “as is” without warranty of any kind and shall not include any Confidential Information of Client.

12.             Limitation of Liability.

12.1          No Consequential Damages. ONESCREEN AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ONESCREEN OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE ONESCREEN PLATFORM, ADVERTISING SERVICES OR RESULTS THEREOF. ONESCREEN WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT SHALL ONESCREEN BE LIABLE FOR ANY ACT OR OMISSION, OR ANY EVENT DIRECTLY OR INDIRECTLY RESULTING FROM ANY ACT OR OMISSION, OF ANY THIRD PARTIES (IF ANY).

12.2          Limits on Liability. ONESCREEN AND ITS LICENSORS SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY CLIENT TO ONESCREEN PURSUANT TO AN INSERTION ORDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY ONESCREEN TO CLIENT IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. CLIENT RELEASES ONESCREEN AND ITS LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE ONESCREEN PLATFORM, ADVERTISING SERVICES OR ANCILLARY SERVICES, AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 12.2.

12.3          Essential Purpose. Client acknowledges that the terms in this Section 12.3 are an essential basis of the bargain described in this Agreement and that, were OneScreen to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 12.3 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

13.             TERM AND TERMINATION.

13.1          Term. The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Advertising Services, unless earlier terminated as provided in this Agreement. Thereafter, the term shall automatically renew for successive one (1) year periods, unless either party provides written notice of termination to the other party at least ninety (90) days before the expiration of such one (1) year period.

13.2          Termination. OneScreen reserves the right to terminate this Agreement for no reason in its sole discretion at any time; provided that, in the event of termination of Advertising Services without cause, OneScreen will provide a pro-rata refund to Client of any pre-paid fees for the then-current Subscription Term. Further, either party may terminate this Agreement (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.

13.3          Effects of Termination. Upon expiration or termination of this Agreement, (i) Client’s use of and access to the Advertising Services and OneScreen Platform and the performance of all Ancillary Services shall cease; (ii) all Insertion Order(s) shall terminate; and (iii) all fees and other amounts owed under this Agreement shall be immediately due and payable by Client, including without limitation, all fees incurred under any outstanding Insertion Orders up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. In addition, within ten (10) days of the effective date of termination each Receiving Party shall (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing, and (c) will promptly return the OneScreen Device to OneScreen as required in Section 3.2 hereof. Following such 10-day period, OneScreen shall have no obligation to maintain or provide any Client Content and may thereafter unless legally prohibited, delete all Client Content in its systems or otherwise in its possession or under its control.

13.4          Survival. This Section 13.4 and Sections 1 (Definitions), 2.5 (Term of Payments), 2.8 (Advertiser Representations and Warranties), 3.4 (Screen Host Payment),3.6 (Screen Host Representations and Warranties), 8 (Indemnification), 9 (Confidentiality), 10 (Client Content), 11 (Proprietary Rights), 12 (Limitation of Liability), 13.3 (Effects of Termination), 14 (Agreement to Arbitrate) and 15 (Miscellaneous) shall survive any termination or expiration of this Agreement.

14.             AGREEMENT TO ARBITRATE.

14.1          Arbitration. You agree that all disputes between You and OneScreen (whether or not such dispute involves a third party) arising out of or relating to these Terms of Service, the Website, the Advertising Services, the OneScreen Platform and/or Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language via teleconference or, if requested by You, in New York, New York, U.S.A., in each case under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and You and OneScreen hereby expressly waive trial by jury. You and OneScreen shall appoint as sole arbitrator a person mutually agreed by You and OneScreen or, if You and OneScreen cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. Each party shall equally bear the costs of the arbitration and each party will bear the cost of their own counsel. All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding the foregoing, either You or OneScreen shall be entitled to seek injunctive relief, security or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Agreement (including without limitation Section 12 above) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

14.2          Waiver of Class Actions. Any claims brought by You or OneScreen must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither You nor OneScreen will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You hereby waive any and all rights to bring any claims related to this Agreement and Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on Your own behalf.

14.3          Opt Out. You may opt out of this agreement to arbitrate in this Section 14. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your login credentials to which the opt out applies and a clear statement that you want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: OneScreen, Inc., ATTN: Arbitration Opt-out, 50 Mayflower Road, Needham MA 02492.

14.4          Survival. This Arbitration section will survive the termination of Your relationship with OneScreen.

15.             Miscellaneous.

15.1          Notices. Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof, when sent by confirmed electronic mail, or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the preamble of this Agreement, or to such other address for either party as may be supplied by notice given in accordance herewith.

15.2          Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by Client. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

15.3          Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

15.4          Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of New York as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. Subject in all respects to Section 14 hereof, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of New York.

15.5          Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

15.6          Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, epidemic, pandemic, terrorism, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, internet failures or communications lines failures, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.

15.7          Assignment. Client may not assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without OneScreen’s prior written consent. Notwithstanding the foregoing, Client may assign this Agreement in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. OneScreen may assign its rights or obligations under this Agreement without Client’s prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.

15.8          Relationship of the Parties. OneScreen is an independent contractor to Client. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.

15.9          Construction of Agreement. Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.

15.10        Entire Agreement. This Agreement, including all Insertion Order(s) and Exhibits, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

[End of Terms and Conditions of Service; Appendix 1 attached below]

 

 

APPENDIX 1

ADVERTISEMENT STANDARDS AND POLICIES

              Advertisements must not promote or offer:

  • material that is illegal, obscene, pornographic, shows nudity, or is indecent or offensive,
  • counterfeit goods,
  • dangerous products or services (including recreational drugs (chemical or herbal), psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials, fireworks, instructions for making explosive or other harmful products),
  • products that enable harmful, unlawful, seditious, criminal or dishonest behavior (including hacking software or instructions, fake documents or cheating services); or
  • products that are directed to children under age 13.

              Advertisements must not contain inappropriate content, including shocking content, content that promotes hatred, intolerance, bigotry, discrimination or violence, or content that is threatening, abusive, libelous, or defamatory. Such advertisements include advertisements promoting or offering hate group paraphernalia, graphic crime scene or accident images, cruelty to animals, murder, self-harm, extortion or blackmail, sale or trade of endangered species, or advertisements using profane language. Advertisements for products that can be used only by a specified demographic, including tobacco or alcohol, will only be considered for screens in appropriate locations for such permitted demographic.

              Advertisements must be useful and safe for Customers, and may not, inter alia, violate any person’s privacy, contain malware, “cloaking” or other techniques to hide the destination of links, promote destinations for the sole or primary intent of showing advertisements, promote destinations that exist for the sole or primary intent of forwarding Customers elsewhere, have the sole or primary intent of gaining public social network endorsements, or have an intent to circumvent rules, laws or policies.

              Advertisers are required to comply with all cybersecurity and privacy laws and may not misuse any personally identifiable information or engage in irresponsible or illegal data collection or use.

              Advertisements must not be misleading or deceptive, must comply with all applicable truth-in-advertising and endorsements laws or regulations, and must not omit important information, make offers that are not available, make misleading or unrealistic claims, collect donations under false pretenses, or engage in phishing or similar activities.

              Advertisements must comply with all intellectual property laws and regulations, including not using any copyrighted content without authorization. Advertisers must hold all necessary rights to use, perform, reproduce, distribute, transmit, display and publish the advertisements.