Terms of Service

MASTER SERVICES AGREEMENT

for Advertising Services provided by OneScreen.ai

This Master Services Agreement (this “Agreement”) is by and between the client named at the signature lines below (“you” or “your” or “Advertiser”) and OneScreen AI, Inc., with offices at 867 Boylston Street, 5th Floor PMB 219, Boston, MA 02116 (“OneScreen.ai” or “we”, “us” or “our”), and is effective from the last signature date as indicated below (“Effective Date”).  This Agreement establishes terms and conditions under which OneScreen.ai will provide to you the services described in insertion order forms or other order form documents (each an “Insertion Order or IO”) entered into between us and you during the Term of this Agreement with regard to provision by us of the services described in each IO.

1.     Definitions.

1.1.   “Ad Host” means any provider of the medium on which an out-of-home advertisement is or may be placed by OneScreen.ai on behalf of Advertiser pursuant to this Agreement.

1.2.   “Advertiser Content” means content, data or information provided to OneScreen.ai by the Advertiser, in connection with the Advertising Services.

1.3.   “Advertiser System” means Advertiser’s website(s), systems, servers and other equipment and software used in Advertiser’s business.

1.4.   “Customer” means a customer or potential customer for Advertiser’s products or services.

1.5.   “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.

1.6.   “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.

1.7.   “Registration Information” means the information set forth in the Insertion Order or that Advertiser otherwise provides in connection with ordering the Advertising Services contemplated by such Insertion Order, as Advertiser may update such information from time to time.

1.8.   “Services” or “Advertising Services” means those services provided by OneScreen.ai hereunder to fulfill orders for advertising as indicated in the applicable Insertion Order.

1.9.   “Term” is defined in Section 10.1 of this Agreement.

2.     Advertising.

2.1.   Appointment as Agent.  Advertiser appoints OneScreen.ai as Advertiser’s non-exclusive advertising agency in connection with the provision of the Services per the Insertion Order.

2.2.   Scope of Advertising Services.  OneScreen.ai will provide Advertiser with the Services as indicated in the Insertion Order. Should Advertiser request OneScreen.ai to perform additional services beyond what is provided in the Insertion Order, OneScreen.ai and Advertiser will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services. Any agreement for additional services will be set forth in writing and considered an addendum to this Agreement.

2.3.   Provision of Advertising Materials. Advertiser shall provide all Advertiser Content for provision to Ad Hosts in accordance with this Agreement. All changes made by Advertiser to Advertiser Content must be made in writing (including via email) prior to the date on which such Advertiser Content is to be published. Advertiser acknowledges that OneScreen.ai’s Advertising Services are dependent upon Advertiser’s provision of such Advertiser Content and related Registration Information. Advertiser hereby appoints OneScreen.ai as Advertiser’s agency of record with respect to such Advertiser Content where placed by OneScreen.ai with Ad Hosts as contemplated by this Agreement.

2.4.   Right to Reject Advertisement. All Advertiser 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.ai ), and are subject to OneScreen.ai's, and for any display location, the applicable Ad Host’s, prior approval. OneScreen.ai reserves the right, in its sole reasonable discretion, to reject any Advertiser Content at any time, for any reason whatsoever (including, but not limited to, belief by OneScreen.ai that any placement thereof may subject OneScreen.ai to any liability, or instruction from an Ad Host to reject such Advertiser Content for any reason). Advertiser remains responsible and liable for the selection, content, and display of any advertisement, including any display permitting interaction with any online material, if any.

2.5.   Changes. Once a campaign for the display of Advertiser Content (a “Campaign”) has begun, if Advertiser wishes to modify anything related to the Campaign, including the relevant Advertiser Content in the Advertisements or where or when the Advertisement is displayed, or  to terminate such Campaign prior to its scheduled end date, a written change order must be agreed upon, and Advertiser acknowledges that as a condition of agreeing to any such change, OneScreen.ai may modify fees, including to cover costs of the take-down and replacement of the Advertisement, or otherwise to compensate it for the modification.  In a change order, the parties would also have to agree on appropriate timing for implementation of the change.  Immediate modifications may not be able to be accommodated. 

2.6.   No Assignment or Resale of Advertisement Space. Advertiser may not resell, assign, or transfer any of its rights to advertisement space 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.ai.

3.     FEES AND PAYMENT.

3.1.    Fees. Advertiser shall pay to OneScreen.ai the fees set forth in the applicable Insertion Order, together with any pre-approved out-of-pocket expenses that may be incurred by OneScreen.ai or its personnel in connection with the Advertising Services, including any travel expenses.

3.2.   Payment.  Advertiser will pay each of OneScreen.ai’s invoices upon its receipt of the invoice, by the payment method indicated in the Insertion Order, provided that if Advertiser has a bona fide dispute regarding any amount invoiced hereunder, Advertiser may, upon written notice to OneScreen.ai, withhold payment of the disputed amount (but shall pay the undisputed portion of the invoice) pending resolution of the dispute.  The parties agree to work together expeditiously to resolve any such dispute. All fees are exclusive of taxes and Advertiser will pay to OneScreen.ai all applicable taxes on the Services that OneScreen.ai is legally obligated or allowed to collect from Advertiser (other than taxes on OneScreen.ai’s income).  Any Fees not paid within thirty (30) days of receipt will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid.  Further, in the event of any action by OneScreen.ai to collect any amount not paid when due, Advertiser will pay or reimburse OneScreen.ai’s costs of collection (including, without limitation, any reasonable attorneys’ fees and court costs).

4.     REPRESENTATIONS AND WARRANTIES.

4.1.   No OneScreen.ai Warranty.  OTHER THAN AS EXPRESSLY STATED HEREIN, ONESCREEN.AI MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING SERVICES OR ANY OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. ONESCREEN.AI DOES NOT WARRANT THAT ONESCREEN.AI'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.

4.2.   Advertiser Warranties.

4.2.1.Advertiser's Representations and Warranties. Advertiser represents and warrants to OneScreen.ai and third parties (if any), (a) that Advertiser holds all necessary rights to permit the display of its Advertiser Content under this Agreement; (b) all Advertiser Content does and will function properly, including proper pixel placement, that the correct creatives and information are provided, and that the Advertiser 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 Advertiser 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 Advertiser 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 Advertiser Content, including without limitation, all claims made in any Advertiser Content, all products and services advertised therein, and any materials to which Customers can link through or otherwise connect, contact or access via the Advertiser Content.

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

4.2.3.Other Advertiser Representations and Warranties. Advertiser represents, warrants and covenants that: (a) Advertiser 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) Advertiser’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 Advertiser to any third party to keep any information or materials in confidence or in trust.

5.     INDEMNIFICATION. Advertiser shall indemnify and hold harmless, and at OneScreen.ai’s request defend, OneScreen.ai and its affiliated entities, 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 Advertiser Content (and the exercise of the rights by OneScreen.ai 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 (other than claims arising from OneScreen.ai’s breach of this Agreement); or (c) any transactions between Advertiser and any third party, whether Ad Host, another Advertiser or otherwise. OneScreen.ai 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.ai, which approval shall not be unreasonably withheld or delayed.

6.     CONFIDENTIALITY.

6.1.   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 also includes all summaries and abstracts of Confidential Information.

6.2.   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 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.

6.3.   Exceptions to Confidential Information. The obligations set forth in Section 6.2shall 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 without an obligation of confidentiality thereto, (ii) is received by the Receiving Party from a third party without restriction on use or disclosure; (iii) is or was developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is or 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) promptly notify the Disclosing Party in writing of the agency’s order or request to disclose unless such notice is legally prohibited; and (iii) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole expense, 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, Advertiser authorizes OneScreen.ai to list Advertiser’s name and logo in a list of customers on OneScreen.ai’s website and marketing materials.

 

7.     ADVERTISER CONTENT.

7.1.   Advertiser Content. Advertiser, not OneScreen.ai, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and OneScreen.ai’s and Ad Hosts’ rights to use all Advertiser Content under this Agreement. Advertiser shall be responsible for obtaining any consents and other rights necessary to collect, submit, use, process, and display Advertiser Content in connection with the Advertising Services.

7.2.   Prohibited Use. Advertiser shall not use the Advertising Services 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.

7.3.   Privacy Policy. If, with regard to any specific advertisement, Customers will interact with the advertisement, Advertiser covenants that the Advertisement’s content shall include, or inform the Customer how it can access, an appropriate privacy policy that complies with all applicable laws and regulations relating to the collection of PII, and that Advertiser will comply with such policy. 

7.4.   Sharing between Ad Hosts and Advertisers. Any Advertiser Content or other information Advertiser shares with any Ad Host or other advertiser is at Advertiser’s sole risk. OneScreen.ai does not control how any Ad Host or advertiser utilizes information they receive from any other Ad Host or advertiser.

 

8.     PROPRIETARY RIGHTS.

8.1.   Ownership. OneScreen.ai acknowledges that the Advertiser System and Advertiser Content, and all Intellectual Property Rights therein, is the sole and exclusive property of Advertiser and its licensors. Each party retains all other rights not expressly granted in this Agreement.

8.2.   License to Advertiser Content and Advertiser Content. Advertiser hereby grants to OneScreen.ai a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, publish, transmit, and distribute the Advertiser Content and all content therein through Ad Hosts in accordance with this Agreement in order to provide the Advertising Services during the Term of this Agreement.  Such license also includes the grant of such rights, during and after the Term of this Agreement: (a) to analyze and improve OneScreen.ai and the Advertising Services; and/or (b) to compile and use aggregate or de-identified data, statistics, measurements or other metrics derived from Advertiser Content and Ad Host Content (including in combination with the aggregate or de-identified customer data of other OneScreen.ai customers) for its own purposes. Aggregate or de-identified data means data that does not identify any Advertiser or individual.

8.3.   Disclosure of Advertiser Content. OneScreen.ai shall not disclose Advertiser 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.ai, (iii) as required by law or to comply with legal process; (iv) to protect and defend the rights or property of OneScreen.ai, 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.

 

9.     LIMITATION OF LIABILITY.

9.1.   No Consequential Damages. ONESCREEN.AI 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.AI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

9.2.   Limits on Liability. ONESCREEN.AI SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AS IT RELATES TO ANY INSERTION ORDER IN ANY AMOUNT GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY ADVERTISER TO ONESCREEN.AI PURSUANT TO THAT INSERTION ORDER, AS REDUCED BY ANY AMOUNT PAID BY ONESCREEN.AI TO RELEVANT AD HOSTS IN CONNECTION WITH THAT SAME INSERTION ORDER, 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.AI TO ADVERTISER IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. ADVERTISER RELEASES ONESCREEN.AI AND ITS LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE ONESCREEN.AI PLATFORM, ADVERTISING SERVICES, AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 9.2.

9.3.   Essential Purpose. Advertiser acknowledges that the terms in this Section 9 are an essential basis of the bargain described in this Agreement and that, were OneScreen.ai to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 9 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.

 

10.  TERM AND TERMINATION.

10.1.     Term. The term of this Agreement (“Term”) shall commence on the Effective Date and continue until fulfillment of all Advertising Services through the dates indicated in the Insertion Order, unless earlier terminated as provided in this Agreement.

10.2.     Termination. Either party may terminate this Agreement 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.

10.3.     Effects of Termination. Upon expiration or termination of this Agreement, 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, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing,. Following such 10-day period, OneScreen.ai shall have no obligation to maintain or provide any Advertiser Content and may thereafter unless legally prohibited, delete all Advertiser Content in its systems or otherwise in its possession or under its control

10.4.     Survival. This Section 10.4 and Sections 1 (Definitions), 3 (Fees and Payment), 4 (Representations and Warranties), 5 (Indemnification), 6 (Confidentiality), 7 (Advertiser Content), 8 (Proprietary Rights), 9 (Limitation of Liability), 10.3 (Effects of Termination), 11 (Agreement to Arbitrate) and 12 (Miscellaneous) shall survive any termination or expiration of this Agreement.

 

11.  AGREEMENT TO ARBITRATE.

11.1.       Arbitration. You agree that all disputes between You and OneScreen.ai (whether or not such dispute involves a third party) arising out of or relating to these Terms of Service  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.ai hereby expressly waive trial by jury. You and OneScreen.ai shall appoint as sole arbitrator a person mutually agreed by You and OneScreen.ai or, if You and OneScreen.ai 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.ai 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 9 above) or to award punitive damages, including but not limited to pursuant to federal or state statutes permitting multiple or punitive awards.

11.2.       Waiver of Class Actions. Any claims brought by You or OneScreen.ai 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.ai 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.

11.3.        Opt Out. You may opt out of this agreement to arbitrate in this Section 11. 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.ai, Inc., ATTN: Arbitration Opt-out, 50 Mayflower Road, Needham MA 02492.

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

 

12.  MISCELLANEOUS.

12.1.       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.

12.2.       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 Advertiser. 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.

12.3.       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.

12.4.       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 11 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.

12.5.       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.

12.6.       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.

12.7.       Assignment. Advertiser may not assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without OneScreen.ai’s prior written consent. Notwithstanding the foregoing, Advertiser 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.ai may assign its rights or obligations under this Agreement without Advertiser’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.

12.8.       Relationship of the Parties. OneScreen.ai is an independent contractor to Advertiser. 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.

12.9.       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.

12.10.    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 main agreement; 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.