These General Terms and Conditions (“Terms”) apply to LiveRamp’s Statement of Work (the “SOW”) for Authenticated Traffic Solutions. When you execute a SOW for Authenticated Traffic Solutions, the following terms apply to such SOW. Upon written notice to Publisher (email acceptable), LiveRamp may, in its discretion, add, remove, revise, change, or otherwise update the Terms. Within thirty (30) days, Publisher shall comply with any such updates noticed by LiveRamp or may terminate the Agreement by providing written notice to LiveRamp (email acceptable). Any such termination following LiveRamp’s update of its Terms shall take effect thirty (30) days after LiveRamp receives Publisher’s notice of termination.
1. STATEMENT OF WORK.
The SOW together with these Terms constitutes the full agreement between the Parties with respect to the subject matter thereof (“Agreement”). If there is a conflict between the SOW and these Terms, the SOW shall govern. The Parties may modify the SOW at any time solely by mutual written agreement, signed by both Parties.
2. TERMINATION FOR CAUSE.
Either Party may immediately terminate this Agreement upon written notice to the other Party if: (a) the other Party is in default of this Agreement and fails to cure, or begin implementation of a mutually-agreed-upon plan to cure, such default within ten (10) days of written notice from the other Party specifying the nature of such default and requiring its remedy; (b) the other Party petitions for relief under the Federal Bankruptcy Code or any involuntary petition is filed against the other Party and is not dismissed within sixty (60) days; (c) relief under the Federal Bankruptcy Code is granted with respect to the other Party as a debtor; (d) the other Party makes a general assignment for the benefit of creditors; or (e) the other Party ceases doing business, assigns, or attempts to assign any portion of this Agreement to an entity other than as provided in Section 9.
3. PROPRIETARY RIGHTS.
3.1 LiveRamp Intellectual Property. LiveRamp owns and retains all right, title and interest (including without limitation all intellectual property rights) in any data, technology, infrastructure, methods or know-how (excluding Publisher Data) in providing its Services.
3.2 Publisher Intellectual Property. Publisher owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to Publisher Data.
3.3 Other Intellectual Property Rights. Each Party may only access and use the other Party’s intellectual property as expressly set forth herein. Nothing in this Agreement shall affect or modify either Party’s ownership rights in any pre-existing or future works, trademarks, copyrights or technologies developed or created by either Party.
4.1 Confidential Information. During the Term, the Parties may disclose to one another, or other entities may disclose to a Party on the other Party’s behalf, certain confidential or proprietary information (“Confidential Information”). Each receiving Party shall: (i) hold the disclosing Party’s Confidential Information in strict confidence; (ii) except as required by law, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party; and (iii) employ all commercially reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information. Each receiving Party may disclose the disclosing Party’s Confidential Information only to those of its and its affiliates’ respective directors, officers, employees, agents, representatives or advisors (including without limitation, legal counsel, accountants, auditors or consultants) (collectively, “Representatives”) on a “need to know” basis and only to the extent necessary to enable the Parties to adequately perform their respective responsibilities to each other. Each receiving Party hereby undertakes to ensure the individual compliance of such Representatives with the terms hereof. No copies of any Confidential Information may be made by a receiving Party except as necessary to perform its obligations pursuant to this Agreement. Confidential Information may not be translated into another format or language, or decompiled or reverse engineered without the disclosing Party’s prior written consent. The Parties acknowledge that a Party’s breach of this Section may result in irreparable harm and significant injury to the other Party and its Publishers and/or partners that may be difficult to ascertain. The non-breaching Party will have the right to seek, in addition to any other remedies that may be available to the non-breaching Party at law or in equity (including an award of attorneys’ fees where it is a prevailing Party), an immediate injunction in the event of any breach of this Section without posting bond.
4.2 Unauthorized Disclosure. Each Party will, as soon as reasonably practical after discovery, report to the other Party any unauthorized disclosure or access to the other Party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident, and take all reasonable measures to prevent any further unauthorized disclosure or access.
4.3 Mandated Disclosure. If a receiving Party is requested or required to provide Confidential Information of a disclosing party to any court or regulatory or government agency pursuant to a written court order, subpoena, deposition, regulatory or civil investigation demand, or other process of applicable local, state or international law (collectively, “Law” and such disclosure, “Mandated Disclosure”), the receiving Party must: (i) unless prohibited by applicable Law, provide the disclosing party with prompt written notice and reasonable cooperation if a protective order is sought; (ii) take reasonable steps to limit any such disclosure only to the Confidential Information required to be compliant with the Mandated Disclosure; and (iii) continue to otherwise protect all Confidential Information disclosed in response to such Mandated Disclosure.
4.4 Exceptions. Notwithstanding anything in this Agreement to the contrary, Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the Parties receiving the information; (ii) was in the lawful possession of the Parties receiving the information prior to the disclosure and had not been obtained either directly or indirectly from the Parties disclosing the information; (iii) is, insofar as is known to the Parties receiving the information, lawfully disclosed by a third party without restriction on disclosure; or (iv) has been or is independently developed by the Parties receiving the information without use of, or reference to, Confidential Information of the other Party.
4.5 Encryption and Prohibited Data. Publisher shall not provide to LiveRamp, or permit any third party to provide to LiveRamp on Publisher’s behalf, any of the following information (“Prohibited Data”): (i) a government-issued identification number (e.g., Social Security Number, driver’s license number, state identification number, or passport number); (ii) a financial or customer account number, including financial institution or bank account number or a credit or debit card number; (iii) information regarding an individual’s sexual orientation, religion, or health or medical condition, including Protected Health Information, as defined in 45 CFR 160.103; (iv) unique biometric data or digital representation of biometric data; (v) an individual’s full date of birth; (vi) maiden name of the individual’s mother; (vii) individual’s digitized or other electronic signature; (viii) a user name, email address or other unique electronic identifier or routing code, which is sent in combination with a personal identification code, password, or security question and answer that would permit access to an online account, or (ix) any data associated with an individual’s status as a person under the age of thirteen. If Publisher should transfer Prohibited Data to LiveRamp in violation of this Section, Publisher shall immediately notify LiveRamp and inform LiveRamp of the date, time, and other pertinent information related to the transfer so LiveRamp may take the steps necessary to remove the Prohibited Data from its systems.
5.1 Mutual Warranties. Each Party represents and warrants to the other that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) the Agreement does not violate any law, statute, or regulation and does not breach any other agreement or covenant to which it is a Parties or is bound; (iv) its Confidential Information has been legally obtained; (v) the provision of its Confidential Information to the other does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable laws, rules, and regulations.
5.2 LiveRamp Warranties. LiveRamp warrants that: (i) it has the necessary equipment, computer capacity, software, programs, and trained personnel to properly perform the Services and provide the Products consistent with standard industry practices; (ii) it will perform the Services in a professional and workmanlike manner; and (iii) it has implemented and will maintain an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any consumer information at issue.
5.3 Publisher Warranties. Publisher represents and warrants that: (i) it fully owns or has the authority to provide and use the Publisher Data as set forth in this Agreement, and that in obtaining or collecting Publisher Data, it did not violate the law, any applicable regulations or self-regulatory guidelines, or the rights of any third party, and (ii) it shall not instruct LiveRamp to process or to take any other action with such data Publisher knows or should reasonably know would violate an applicable law, Publisher’s own published privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected.
5.4 Disclaimers. EXCEPT AS STATED IN THIS SECTION 5 OR IN THE SOW, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS.
6. LIMITATION OF LIABILITY.
6.1 Indirect Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
6.2 Aggregate Liability.
(a) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
6.3 Exclusions and Miscellaneous. The limitations in this Section 6: (i) shall not apply to a Party’s indemnification obligations in Section 7 nor to damages resulting from a Party’s gross negligence or intentional misconduct; and (ii) shall apply regardless of the legal theory or form under which any action is brought. For this Agreement, “gross negligence” shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences. Each Party shall have a duty to mitigate damages for which the other Party is responsible.
Each Party (“Indemnifying Party”) agrees to indemnify and hold the other Party, its agents, and its Representatives (“Indemnified Party”) harmless from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the Indemnified Party as the result of: (i) injuries or property damage caused by the Indemnifying Party’s Representatives; (ii) the Indemnifying Party’s failure to comply with all applicable laws and regulations; or (iii) the misappropriation or misuse of the Indemnified Party’s Confidential Information by the Indemnifying Party. The Indemnifying Party shall have the right to exercise reasonable control over any litigation within the scope of this indemnity; provided, however, that the Indemnified Party shall have the right to participate in any such litigation insofar as it concerns claims against it. That right to participate includes the Indemnified Party’s right to select and retain counsel to represent it at the Indemnified Party’s own expense.
Neither Party may use the other Party’s name or trademark in any proposed press releases, advertising, or other promotional materials without the written consent of the other Party.
Neither Party may assign its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be required for assignment by either Party to an Affiliate or other entity under common control with such Party, provided that the assigning Party shall remain fully liable for performance hereunder, unless the Parties agree otherwise in writing.
Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the designated recipient provided below by certified United States mail, return receipt requested, or by a nationwide courier delivery service. Notice that is delivered via facsimile or electronic mail is sufficient to meet the notice requirement, provided it is: (i) confirmed as received by the other Party, or (ii) an original copy follows it by mail, as set forth above, in a timely manner. A Party may change the name or address of the designated recipient by giving written notice to the other Party. Any notice or communication shall be deemed given upon receipt.
(a) If to LiveRamp, notices or other communications required hereunder shall be sent to the address first set forth above, to the attention of the undersigned for LiveRamp, with a copy to LiveRamp Inc., Attn: Legal Team, 225 Bush Street, 17th Floor, San Francisco, California 94104, email@example.com; and,
(b) If to Publisher, notices or other communications required hereunder shall be sent to the address first set forth above, to the attention of the undersigned for Publisher.
This Agreement is governed by applicable California law without regard to its choice of law rules. Any dispute between the Parties shall be resolved exclusively in the state or local courts located in San Francisco County, San Francisco, to which jurisdiction both Parties irrevocably submit. In the event of conflicting provisions between these Terms and the SOW, the terms of the SOW shall control and resolve the conflict. Upon forty-five (45) days written notice and no more than once every twelve (12) months, LiveRamp may audit your compliance with the terms of this Agreement and the SOW. Any such audit shall not unreasonably interfere with your normal business operations. The Agreement may only be amended in writing. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right. This Agreement is solely on behalf of and for the benefit of the undersigned Parties. There are no intended third party beneficiaries to this Agreement. The Parties agree that they are independent contractors, and that no joint venture, partnership, employment or agency relationship exists between the Parties as a result of this Agreement. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. The descriptive headings of the sections of this Agreement are for convenience only and do not constitute a part of this Agreement. With respect to all of their respective dealings under this Agreement, each Party will act fairly and in good faith, and in the event of a dispute arising under this Agreement, each Party agrees to engage first in a business meeting to resolve the dispute. This Agreement may be executed in any number of counterparts, including via the exchange of .pdf or facsimile copies or by the use of a mutually agreeable electronic signature authentication program, each of which may be executed by less than all of the Parties hereto and shall be enforceable with respect to the Parties actually executing such counterparts.