DeepView Services Agreement
1. Scope of Application
1.1 This Scalarr DeepView Services Agreement (this “Agreement”) applies to the provision of Scalarr Services (as defined in this Agreement) and is made and entered into by and between Scalarr, Inc., a company duly incorporated and operating under the laws of Delaware, USA (“Scalarr”, “we” or “our”), and you or the entity you represent, the Party wishing to become a Scalarr customer (“you” or “Customer”). Scalarr and Customer are referred to in this Agreement collectively as the "Parties" and each individually as a "Party".
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1.2 All of the terms of this Agreement together constitute legally binding terms between you and Scalarr. By using the Scalarr Services or executing any Insertion Order (as defined below), the Customer understands and agrees to be bound by this Agreement and any Insertion Order (as defined below) executed now or in the future.
1.3 This Agreement shall be effective as of the last date this Agreement is executed by either Party (the “Effective Date”).
2. Scalarr Services
2.1 Scalarr shall provide Customer with invalid traffic classification as identified by Scalarr (the "IVT") and delivers to Customer regular analytics and statistic reports (the “IVT Reports”) and data on the results of such analysis, hereinafter defined as the "Post-Bid Services" or as the "Scalarr Services". The reports and data on Post-Bid Services will be available in the online account provided by Scalarr “Scalarr Software”.
2.2 Scalarr shall render Scalarr Services in accordance with the respective service description in effect at the time the Insertion Order is concluded and according to a good industry standard and will ensure that the Services are in compliance with any applicable law and/or regulation.
2.3 Scalarr reserves the right to make technical changes and improvements to Scalarr Services. Scalarr may reasonably suspend Scalarr Services for maintenance or repair purposes if such maintenance or repair is necessary to ensure the proper operation of Scalarr Services.
2.4 Scalarr may use the assistance of its Personnel in order to fulfill its contractual obligations. “Personnel” means Scalarr employees, contractors, consultants, directors and other Scalarr staff involved in the provision of Scalarr Services on a regular basis.
3. Offer and Conclusion of a Contract
3.1 Scalarr shall provide Scalarr Services to Customer pursuant to the terms and conditions of individual subscription package(s) (the “Subscription”) executed by and between Scalarr and Customer in the form of insertion order (the “Insertion Order”) for an agreed by Parties specific period of provision of Scalarr Services (the “Subscription Term”). The applicable Insertion Order is attached in Exhibit A to this Agreement.
3.2 Scalarr offers the following types of Subscriptions:
(i) Free Trial Subscription
Customer may be offered to sign up for a Free Trial Subscription for a limited Subscription Term by execution of Free Trial Insertion Order. Scalarr Services provided during Free Trial Subscription may be limited for demonstration purposed only. Unless otherwise agreed between the Parties, the Free Trial Subscription is available only once to Customer. If Customer does not order a Fee-based Scalarr Subscription within the initial Free Trial Subscription Term, Customer will not be entitled to continue its use of Scalarr Services after the expiration of the Free Trial Subscription.
(ii) Fee-based Subscription
Customer may enter into Fee-based Subscription by execution of Fee-based Insertion Order specifying:
- subscription fee to be charged by Scalarr for use of Scalarr Services for a specific Subscription Term (the “Subscription Fee”);
- how and when Subscription Fee shall be paid by Customer (the “Payment Terms”) as well as applicable billing period (the “Billing Period”);
- the date of actual start of analysis (the “Analysis Start Date”).
3.3 In order to initiate Scalarr’s provision of the Scalarr Services pursuant to an Insertion Order, Customer must send the signed Insertion Order to Scalarr by email. In addition to any provisions contained in an Insertion Order, the terms and conditions of this Agreement shall apply. To the extent there is conflict between the terms of this Agreement and the terms of an Insertion Order, the terms of the Insertion Order shall govern. In case of discrepancy between the DPA and this Agreement or Insertion Order, the DPA shall govern.
3.4 The Customer represents and warrants that all Customer contact information, billing information (where applicable) as well as other relevant contractual data provided by Customer during the conclusion of the agreement is complete, up to date and correct. The Customer is obliged to promptly inform Scalarr about any changes to this data and/or promptly update Customer data.
3.5 The Parties are aware that confirmation emails, proposed amendments to the Agreement and other notifications may be sent via email to the email address specified in any Insertion Order. Such emails, amendments and notifications will be deemed to have been received when they are retrieved by the Party from its email inbox. For clarity, an amendment to the Agreement or Insertion Order requires a written document with signatures from duly authorized representatives of both Parties.
4. Customer’s Rights and Obligations
4.1 Customer may use the Scalarr Services only to the extent described herein.
4.2 Customer agrees to keep the passwords and login data provided by Scalarr for access to the Scalarr Software confidential and to inform Scalarr immediately if Customer becomes aware that unauthorized third parties have gained access to such passwords. If, due to the Customer’s gross negligence or willful misconduct, unauthorized third parties use any services provided by Scalarr by using Customer’s passwords, Customer may be liable to Scalarr for usage fees and damages caused by such unauthorized use.
4.3 Customer shall not make the Scalarr Software available to any unaffiliated third parties. In addition, Customer shall not:
- modify, translate, reverse engineer, decompile, disassemble or otherwise create derivative works from Scalarr Software or documentation.
- without Scalarr’s express prior written consent and unless all respective fees have been paid, transfer, lend, rent, lease, distribute the Scalarr Software, or use it for providing services to a third party, or grant any rights in and to Scalarr Software or documentation to a third party in any form; or
- remove, modify or make illegible the labels, markers or designations regarding copyrights and other intellectual property rights of Scalarr Software or documentation.
4.4 If Scalarr has protected its Scalarr Software by technical means (e.g. security codes, firewalls, etc.), Customer is not allowed to circumvent or remove such security measures.
4.5 Customer is obliged to protect its own data by taking appropriate measures and by regularly making backups of its data.
4.6 In connection with Customer’s use of the Scalarr Services, Customer must follow Scalarr’s reasonable instructions, as well as the protocols and specifications requested by Scalarr, with regard to telecommunication/data transmission.
5. Fees; Payment
5.1 The fees for using of Scalarr Software and Scalarr Services will be set forth in an applicable Insertion Order. Unless explicitly stated otherwise, all fees do not include any applicable statutory taxes.
5.2 Invoices will be sent to Customer via email indicated in the Insertion Order in electronic form, unless in Insertion Order expressly agreed otherwise.
5.3 Payment of invoices shall be due within 10 calendar days of receipt of the invoice by Customer, unless in Insertion Order expressly agreed otherwise.
5.4 If Customer’s payments are delayed, Scalarr reserves the right to suspend the provision of the Scalarr Services at the expense of the Customer until all payments due have been made. After providing Customer with 30 calendar days’ notice of Customer’s failure to pay fees that are due, Scalarr may terminate the applicable Insertion Order upon expiration of such 30-calendar day notice period. In case of returned direct debits or unpaid checks, Customer shall reimburse Scalarr for the costs incurred to the extent that the Customer was responsible for the events giving rise to such costs.
5.5 Unless in Insertion Order expressly agreed otherwise, any Customer complaints relating to an invoice must be submitted to Scalarr in writing, including by email to [email protected], within 10 calendar days of Customer’s receipt of the invoice in question. If no such complaint has been made within 10 calendar days after Customer’s receipt of invoice, the invoice is deemed to be accepted.
5.6. Customer is responsible for paying any and all applicable sales, use, value added or withholding tax (if any) due to all taxing authorities arising from, or in connection with, Customer’s use of Scalarr Services including, without limitation, taxes and related fees, costs and penalties incurred by Customer.
5.7. Subscription Fee is non-refundable. There will be no refunds for partial use of Scalarr Services, upgrade/downgrade refunds, refunds for unused features, or refunds for failures or inaccessibility of Scalarr Services due to circumstances beyond Scalarr control. Unless otherwise agreed between the Parties, if Scalarr Services are terminated by the Customer before the end of Subscription Term, Customer will still be liable for a remaining unpaid Subscription Fee for the whole Subscription Term. Scalarr may recover any payments due and, in that case, Customer will bear all reasonable expenses in connection with such recovery or debt collection.
6. Grant of Rights; Ownership; Third Party Rights
6.1 Upon full execution of this Agreement, Scalarr grants the Customer the non-exclusive, non-transferable and non-sublicensable right to use Scalarr Services during the term of this Agreement and in accordance with the respective Insertion Orders.
6.2 Scalarr shall retain all intellectual property rights as well as any other property rights in and to the Scalarr Software, the Scalarr Services and other services, reports and data that is provided by Scalarr under this Agreement, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, reports, report templates, databases, and preparatory material).
6.3 Customer retains all ownership and intellectual property rights in and to Customer's trade secrets, Customer's modes of operation, Customer's unique articles and ad creative (“Customer Intellectual Property”). Customer shall provide Scalarr with a limited, non-exclusive, revocable license to use the Customer Intellectual Property for the provision of the Services. Scalarr acknowledges that any copy, reproduction, publishing, distributing and editing of Customer Intellectual Property, except as reasonably required by Scalarr for the provision of the Services, shall be considered a breach of contract. Scalarr shall treat Customer Intellectual Property of the customer as Customer's Confidential Information.
6.4 While using the Scalarr Services, neither Party will violate any applicable laws, third party rights (e.g. copyrights, personality rights, intellectual property rights) or the terms of this Agreement.
7. Service Availability
7.1 Upon receipt of the Scalarr Services, Customer may notify Scalarr in writing regarding any obvious defects and Scalarr shall timely remedy any such defects. In such a case Customer provides Scalarr with any information or documents required to analyze or debug the Scalarr Services and will provide Scalarr with access to the Customer’s servers if Customer deems it necessary and grants its approval to providing such access.
7.2 The Scalarr Services shall be available to Customer at least 99.8 % of the time Customer is entitled to use the Scalarr Services. Scalarr points out that the Scalarr Services may be interrupted or disrupted by circumstances beyond Scalarr’s reasonable control, including but not limited to acts of third parties that do not act on Scalarr’s behalf, technical conditions of the Internet that Scalarr cannot influence or force majeure events.
8. Term; Termination
8.1 The term of this Agreement will commence on the Effective Date and will continue until the earlier of (i) the end of the Subscription Term or (ii) termination as provided in this Section.
8.2 Both Parties may immediately terminate this Agreement
- if the other Party becomes insolvent, subject to insolvency proceedings, insolvency proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets;
- if the other Party materially breaches this Agreement and fails to remedy such violation within 30 calendar days of receipt of a written request.
8.3 Scalarr may immediately terminate this Agreement
- if Customer breaches its obligations pursuant to Section 4.3, 4.4, 4.6, 6.3 or 9 of this Agreement;
- if Customer is in default of payment and does not settle the outstanding payment upon receipt of a warning letter with a 30-calendar day deadline for payment;
8.4 Each Party may terminate this Agreement at any time provided that such Party provides 30 days prior written notice to the other Party. However, if the Customer terminates the Agreement before the end of Subscription Term, then the Customer shall be liable for outstanding payments for the remaining Subscription Term.
8.5 Upon termination of this Agreement, Customer is obliged to delete all copies of the codes and other materials that were provided by Scalarr and Scalarr shall be obliged to delete all copies of personal data to processed on its behalf of Customer as prescribed in the Data Processing Agreement.
9.1 “Confidential Information” means any and all information and material disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is marked as, or provided under circumstances reasonably indicating it is, confidential or proprietary. Confidential Information includes documents, information and data that relate to companies or entities affiliated with the Disclosing Party or other of the Disclosing Party’s partners or contractors and documents, information and data about customers and sales representatives of the Disclosing Party. Confidential Information shall not include any information that the Receiving Party can establish (i) became available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party; (ii) becomes publicly known or made generally available after disclosure to Receiving Party through no wrongful action or inaction of the Receiving Party; (iii) is in the rightful possession of the Receiving Party, without confidentiality obligations, at the time of disclosure; or (iv) was independently developed by Receiving Party without use of the Confidential Information. During and after the Term, the Receiving Party shall not (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of this Agreement or (ii) disclose the Confidential Information to any third party. At all times the Receiving Party shall protect and preserve the Confidential Information as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care). The Receiving Party may disclose, distribute or disseminate the Confidential Information to any of its officers, directors, members, managers, partners, employees, agents or other persons (its “Representatives”) provided that the Receiving Party reasonably believes that those Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party may disclose Confidential Information to the extent compelled by applicable law; provided however that, prior to such disclosure, the Receiving Party shall provide prior written notice to the Disclosing Party and shall seek a protective order or such similar confidential protection as may be available under applicable law. The Parties agree that no ownership of Confidential Information shall be conveyed to the Receiving Party. The Parties agree that the confidentiality provisions in this paragraph shall continue after the expiration, or earlier termination, of this Agreement.
10. Data Protection
10.1 Both Parties are obliged to comply with applicable data protection laws.
10.2 The processing of personal data by Scalarr on behalf of the Customer requires that the Parties enter into a written agreement which supplements this Agreement and is available at: https://scalarr.io/document/deepview_dpa (the “Data Processing Addendum”). By executing the corresponding Insertion Order Customer agrees to terms and conditions of the Data Processing Addendum and commissions Scalarr to process personal data on its behalf pursuant to Data Processing Addendum.
11.1 EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT OF ALL APPLICABLE LAWS, SCALARR SOFTWARE AND THE SCALARR SERVICES ARE PROVIDED BY SCALARR AS A NEUTRAL HOST AND ON AN “AS IS” BASIS, AND SCALARR DISCLAIMS: (I) ALL REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SCALARR SOFTWARE AND SCALARR SERVICES RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (II) ANY WARRANTY THAT SCALARR SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE; AND (III) LIABILITY FOR ANY THIRD PARTY’S SECURITY METHODS AND PROTECTION PROCEDURES. FURTHER, SCALARR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SCALARR SOFTWARE. CUSTOMER MUST USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, SCALARR PROVIDES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED HEREIN.
11.2 Customer acknowledges and agrees that there are risks associated with utilizing an Internet-based service including, but not limited to, the risk of failure of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Customer’s account, including, but not limited to Customer’s data.
11.3 Invalid traffic, suspected fraudulent data-points and other designations that may be present in applicable Scalarr Services, Software and materials reflect Scalarr’s opinions with respect to factors that Scalarr believes may be useful to its clients. While properly grounded by Scalarr advanced machine learning algorithms and analytics, Scalarr designations are merely Scalarr’s opinions (i.e., neither facts nor guarantees).
12. Representations and Warranties
12.1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
13. Limitations of Liability
13.1. EXCEPT FOR DAMAGES ARISING OUT OF THE PARTIES CONFIDENTIALITY OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR SCALARR SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE.
13.2. EXCEPT IN THE CASE OF FRAUD, BREACH OF CONFIDENTIALITY, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE SCALARR’S TOTAL LIABILITY AS A RESULT OF EVENTS OCCURRING OR CLAIMS ARISING IN ANY CALENDAR YEAR DURING THE TERM OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH HEREOF, OR FROM ANY SERVICES PROVIDED BY OR FURNISHED BY SCALARR, SHALL IN NO EVENT EXCEED THE VALUE OF THE SUM OF THE SCALARR’S FIXED FEE FOR THE APPLICABLE CALENDAR YEAR.
14.1. Claims Against Customer. Scalarr, at its own expense, will defend, indemnify and hold Customer and its directors, officers, employees, affiliates, shareholders and representatives harmless against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or action to the extent that such third party claim, suit or action is based upon an allegation that: (i) The performance of any of Scalarr’s obligations contemplated under this Agreement infringes on any rights of any third party (including, without limitation, any intellectual property rights, privacy rights or publicity rights); (ii) Scalarr has breached any of its obligations, representations or warranties hereunder. The foregoing obligations are conditioned on Customer promptly notifying Scalarr in writing of such claim.
14.2. Claims Against Scalarr. Customer, at Customer’s own expense, will defend, indemnify and hold Scalarr and its directors, officers, employees, shareholders and representatives harmless against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or action, to the extent that such third party claim, suit or action is based upon an allegation that: (i) Customer’s performance of any of Customer’s obligations contemplated under this Agreement infringes any rights of any third party (including, without limitation, any trade secret, trademark, copyright, or patent or other intellectual property right of any third party, privacy rights or publicity rights); or (ii) Customer has breached any of its obligations, representations or warranties hereunder. The foregoing obligations are conditioned on Scalarr promptly notifying Customer in writing of such claim.
14.3. Procedure. Each Party will use counsel reasonably satisfactory to the other Party to defend each claim under this Section. Each Party will at all times keep the other Party advised of the status of each claim and the defense of such claim. Each Party will cooperate, at their own expense, with the other Party’s defense. Each Party may participate in the defense at its own expense. If at any time an indemnified Party reasonably determines that any claim might adversely affect the indemnified Party, such indemnified Party may take control of the defense of the claim, and in such an event the indemnified Party will proceed diligently and in good faith with such defense. Neither Party will consent to the entry of any judgment or enter into any settlement without the indemnified Parties’ prior written consent, which may not be unreasonably withheld.
15. Applicable law and jurisdiction
This Agreement is governed by and construed in accordance with the laws of England and Wales, without giving effect to principles of conflicts of laws. In the event of any controversy or claim arising out of or relating to this Agreement, or a breach thereof, the Parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If the Parties do not reach settlement within a period of 30 days, then, upon notice by any Party to the other(s), any unresolved controversy or claim shall be finally resolved by arbitration administered by the American Arbitration Association (the AAA) in accordance with its International Expedited Procedures, with the following requirements: (i) the number of arbitrators shall be one; (ii) the place of arbitration shall be New York, New York; (iii) the arbitration shall be held, and the award rendered, in English; and (iv) the appointing authority shall be the AAA acting in accordance with the rules adopted by the AAA for this purpose. Each Party shall bear its own expenses, but the Parties shall share equally in the expenses of the arbitration tribunal. The Parties agree that all arbitration proceedings conducted pursuant to this Section shall be kept strictly confidential, and all information disclosed in the course of such arbitration proceedings shall be used solely for the purpose of those proceedings.
All notices required by or relating to this Agreement shall be in writing and deemed given if sent to the addressee specified below either (i) by registered or certified mail, return receipt requested, postage prepaid, three (3) days after such mailing, or (ii) by national overnight courier service, the next business day, or (iii) by via email to the email address(es) set forth in Insertion Order, or, if no such email address is provided below, to the Party’s last known email address.
17. Miscellaneous Provisions
If any provision of this Agreement or part thereof is invalid or becomes invalid at a later time, the validity of the remaining provisions shall remain unaffected. The relevant provision shall be replaced by a provision that as closely as possible reflects the purpose of the invalid provision.