This Agreement (the “Agreement”), is between SHOW ADVERTISING LTD., a company registered under the laws of the State of Israel (“Show!”), and any customer of that company (“Customer”). Each of Show! and the Customer is hereinafter referred to as a “Party” and, together, as the “Parties”.
WHEREAS, Show! has developed software using artificial intelligence and machine learning to help show ads in live video streams (the “Service”); and WHEREAS Customer is interested in using the Service to either monetize their streams by letting Show! run ads on his/her own stream or to promote his/her product using an ad on the platform (the “Purpose”);
NOW, THEREFORE, in consideration of the mutual covenants hereinafter, the Parties agree as follows:
1.1. Customer’s Personal Data means personal data of the users of the Service on behalf of Customer.
1.2. “Output Data” means the various reports, alerts, analytics, recommendations, notices, and other types of information and data that the Service may generate, provide or make available to Customer.
1.3. “Service Data” means the data collected and processed in the course of providing the Service, about the use of the Service, including de-identified data, bandwidth utilization, and statistical or aggregated information about Customer’s use of the Service and all pertinent information at Customer’s disposal concerning bugs, errors and malfunctions in the Service, performance of the Service, its compatibility and interoperability.
1.4. Customer’s Data means Customer’s Personal Data, Service Data and Output Data collectively.
1.5. “Term” means the period of this Agreement as specified in section 11 below.
- The Service Show! has developed a proprietary software using artificial intelligence and machine learning to show ads in live video streams. Using Show!’s solution, companies can promote their products using ads on Show!’s platform, and content creators can monetize their streams by letting Show! run ads on their live streams.
- License to Use the Service
3.1. Subject to the provisions of Sections 4 below and solely for the Purpose, Show! grants Customer a limited, non-transferable, non-assignable, non-exclusive, and non-sublicense-able right to use the Service during the Term for internal use only (the “License”).
3.2. Customer’s License includes unlimited access to the Service, as specified in Appendix A.
3.3. Customer must ensure that its employees, consultants and agents that designated to use and deal with the Service fully comply with this Agreement. Customer shall be liable to Show! for all acts and omissions of those that use and deal with the Service on its behalf as though Customer had performed those acts or omissions.
- Use Restriction
Customer and all of its employees, agents, independent contractors or consultants shall not:
4.1. sublicense, transfer and/or assign the Service or any part thereof to any third party, with or without consideration;
4.2. remove, or in any manner alter, any product identification, proprietary, trademark, copyright or other notices contained in the Service;
4.3. allow any third parties to use the Service;
4.4. interfere with, burden or disrupt the Service’s functionality;
4.5. make any copies of the Service, its content or any portions thereof.
4.6. breach the security of the Service, identify, probe or scan any security vulnerabilities in the Service;
4.7. use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
4.8. send any virus, worm, Trojan horse or other malicious or harmful code or attachment;
4.9. use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Service.
4.10. enhance, supplement, modify, adapt, decompile, disseminate, disassemble, recreate, generate, reverse assemble, reverse compile, reverse engineer, or otherwise attempt to identify the underlying source code of the Service; or
4.11. use the Service in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service;
Any such improper use of the Service will result in irreparable harm to Show! for which monetary damages would be inadequate.
- Intellectual Property
5.1. The Service is a proprietary offering of Show!, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. The Service is licensed to Customer for use and access only in accordance with the terms of this Agreement and is not sold or licensed in any other way.
5.2. Except for Customer’s limited License to use the Service according to this Agreement, this Agreement does not grant or assign to Customer, any license, right, title, or interest in or to the Service, Service Data, Output Data and Feedbacks or the intellectual property rights associated with it. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service or any part thereof, including computer code, graphic design, layout and the user interfaces of the Service, whether or not based on or resulting from Feedback, are and will remain at all times, owned by, or licensed, to Show!.
5.3. Subject to Customer’s written consent, and notwithstanding anything to the contrary herein, Show! may identify Customer as a customer and indicate Customer as a user of the Service on its website and in other online or offline marketing materials and press releases. Customer hereby grants Show! a worldwide, non-exclusive, non-transferable, royalty-free and free of charge, license, to use Customer’s name, logo, and website URL on its website and in other online or offline marketing materials relating to the Service. Show! will use this content strictly in accordance with any usage guidelines sent by Customer in advance.
6.1. ”Confidential Information” shall mean any and all information disclosed by one Party (”Disclosing Party”) to the other (”Receiving Party”) regarding past, present, or future marketing and business plans, customer lists, lists of prospective customers, technical, financial or other proprietary or confidential information of the Disclosing Party, formulas, concepts, discoveries, data, designs, ideas, inventions, methods, models, research plans, procedures, designs, formulations, processes, specifications and techniques, prototypes, samples, analyses, computer programs, trade secrets, data, methodologies, techniques, non-published patent applications and any other data or information, as well as improvements and know-how related thereto.
6.2. Each Party herein must hold any Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that it uses to prevent the unauthorized dissemination or publication of its own confidential information. Receiving Party may use this Confidential Information only for the purpose of performing its obligations under this Agreement.
6.3. The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on Receiving Party’s part; (ii) Receiving Party can demonstrate in its prior established records to have had rightfully in Receiving Party’s possession prior to disclosure of the same by the Disclosing Party; (iii) Receiving Party can demonstrate by written records that it had rightfully obtained from a third party who has the right to transfer or disclose said information, without default or breach of confidentiality obligations; (iv) Disclosing Party has provided its prior written approval for disclosure; or (v) Receiving Party are required to disclose pursuant to a binding order or request
by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Receiving Party shall provide the Disclosing Party notice of the requested disclosure as soon as practicable, to allow the Disclosing Party, if it so chooses, to seek an appropriate protective or preventive order.
7.1. Customer may provide Show! with information about the Service’s use experience, including information pertaining to bugs, errors and malfunctions of the Service, performance of the Service, the Service’s compatibility and interoperability, and information or content concerning enhancements, changes or additions to the Service that Customer requests, desires or suggests (collectively, the “Feedback”).
Customer hereby assigns all right, title and interest in and to the Feedback to Show!, including the right to make commercial use thereof, for any purpose Show! deems appropriate.
- Data and Privacy
8.1. Customer states that it has obtained, and will maintain valid throughout the Term, any and all authorizations, permissions and informed consents, including those of individuals about whom the Service may process personal data or personally identifiable information, as may be necessary under the law (including, the applicable data protection laws and regulations), to allow Show! to lawfully collect, handle, retain, process and use such data in the manners and for the purposes of this engagement. Customer shall defend, indemnify and hold harmless Show! and its directors, officers, employees, and vendors, upon Show!’s request and at Customer’s expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from Customer’s breach of the foregoing statement.
8.2. Customer permits Show! to use metadata and de-identified data generated in
connection with the use of the Service, including data and bandwidth utilization and statistical or aggregated information (collectively, the “Metrics”), for any purpose Show! deems appropriate.
8.3. Customer further acknowledges and agrees that Show! will handle and use (by itself or by using trusted third-party service providers such as cloud service providers) the Customer’s Service Data and Feedback as follows:
8.3.1. To provide the Service to Customer, conduct administrative and technical
activities necessary to maintain and provide the Service and to improve and
customize the Service;
8.3.2. To conduct analysis or generate metrics related to the Service;
8.3.3. For commercial and marketing purposes, publication of case studies and
white papers (only in a form not identifying the Customer or its users);
8.3.4. To bill and collect fees, enforce this Agreement and take any action in any
case of dispute, or legal proceeding of any kind involving Customer with
respect to the Service;
8.3.5. To prevent fraud, misappropriation, infringements, and other illegal activities and misuse of the Service;
8.3.6. To develop new products and services, for research and testing and for any other purpose.
Customer will not be entitled to any remuneration from Show! for all such uses.
8.4. Show! will processes the Customer’s Personal Data only on documented instructions from the Customer, unless required to do so by applicable law to which Show! is subject; in such a case, Show! shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
8.5. Show! may disclose or share Customer’s Data, if required, or if it reasonably believes that it is required, by law, pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, Show! will endeavor to give Customer reasonable notice of the requirement prior to such disclosure, to allow Customer, at Customer’s cost and expense, to intervene and protect its interests in the data.
8.6. Subject to the foregoing, Show! will take precautions to maintain the confidentiality of Customer’s Data, in a manner no less protective than it uses to protect its own similar assets, but in no event less than reasonable care. Show! will not use or disclose Customer’s Data except as described above or otherwise subject to Customer’s express, prior, written permission. Show!’s personnel, staff, advisors and consultants will access Customer’s Data on a strict ‘need to know’ basis, subject to this Agreement. Show! will ensure that persons authorized to process Customer’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
8.7. Show! will, implement appropriate technical and organizational measures to ensure a level of security to the Customer’s Personal Data appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
8.8. The Service does not provide, and is not intended as, data back-up service. Show! may delete Customer’s Data from the Service upon termination of this Agreement. Customer is responsible for maintaining back-up copies of its Data.
8.9. Show! may store and process any Customer’s Data outside of the European Economic Area and outside Customer’s home country. Such transfer of Customer’s Personal Data will be performed in accordance with the applicable privacy laws.
8.10. Show! may use the services of subcontractors for the purpose of providing the Service to Customer. In the event Show! intends to engage a new subcontractor, it will provide Customer with notice of that fact and Customer may object to the engagement of such subcontractor for reasonable data protection concerns. If the Customer so objects, Show! will not process Customer’s Personal Data by using said subcontractor. Show! will impose the same data protection obligations as set out in this Agreement on any subcontractors who process Customer’s Personal Data and in any event will remain liable for any breach of such obligations by its subcontractors.
8.11. Show! will, taking into account the nature of the processing, assists the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subjects’ rights.
8.12. Where the Customer’s Personal Data is subject to the EU General Data Protection Regulation (the “GDPR”), Show! will, taking into account the nature of processing and the information available to it, assist Customer in performing its duties as a controller under the GDPR, and in the performance of an impact assessment and prior consultation with data protection authorities.
8.13. At the end of the Term of this Agreement, for any reason, the Parties will work to return any Confidential Information they have disclosed to each other. Show! will, at the choice of Customer, return or delete Customer’s Personal Data.
8.14. Show! will notify Customer of any personal data breach (as the term is defined under applicable data protection laws) within seven (7) days from the date it became aware of such breach. Show! will reasonably assist the Customer in investigating such breach and in providing notice to the effected data subjects and to data protection authorities where such notice is required under applicable data protection laws.
8.15. Show! will make available to the Customer all information necessary to demonstrate compliance with the obligations as a processor under the applicable data protection laws and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer, at Customer’s cost and expense, and subject to Customer’s written notice at least 30 days prior to such audit. Customer must ensure that its personnel or anyone on its behalf is committed to confidentiality with regards to any of Show!’s Confidential Information it may be exposed to in connection with such audit or inspection, including the results of such audit or inspection.
- Technical Support
During the Term, Show!, either directly or with the assistance of third parties, will endeavor to provide Customer technical support for technical questions, problems and inquiries regarding the Service, during Show!’s business days and hours, and pursuant to its then-applicable support scheme, hours and channels. Show! will attempt to respond to Customer’s technical questions, problems and inquiries as soon as practicably possible. However, Show! makes no warranties to the successful or satisfactory resolution of the question, problem or inquiry; and may decline to provide such support for matters that it
deems, in its sole discretion, to require unreasonable time, effort, costs or expenses. For the purpose of the provision of technical support for Customer’s technical questions, problems and inquiries, Customer will cooperate, and work closely with Show!, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as Show! reasonably requests.
In consideration for the License, Customer will pay Show! the fees specified in Appendix A attached hereto (the “Consideration”) according to the payment scheme specified therein. The Consideration is non-refundable.
The Consideration is exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. Customer shall bear all such taxes and charges, excluding taxes based solely on Show!’s net income, by grossing-up the Consideration accordingly.
- Term and Termination
11.1. This agreement will be in effect for one (1) year following its effective date, unless renewed by the Parties (the “Term”).
11.2. Notwithstanding the above, either Party may terminate this agreement:
11.2.1. In the event of a material breach of this Agreement by the other Party, where the breach remains uncured for thirty (30) days following written notice thereof from the non-breaching Party to the breaching Party, but if a breach is of a nature that cannot be cured, then the non-breaching Party may terminate the Agreement immediately upon notice to the other Party;
11.2.2. If the other Party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
11.3. Immediately upon termination of this Agreement:
11.3.1. Show! may terminate Customers’ account on the Service and delete the
Customer’s Data (if stored) in its systems;
11.3.2. Customer shall cease any and all use of the Service;
11.3.3. Show! will charge Customer for all then-outstanding Fees (if any). In the event of termination by Show! due to a material breach by Customer, Customer shall be required to pay Show! the Fees due for the full Term of this Agreement;
11.4. Sections in this Agreement that by their purpose of nature should survive
termination of this Agreement, will so survive.
- No Warranty and Limitation on Liability
12.1. Show! will endeavor to have the Service operate properly. However, as a service that relies on back-end software, infrastructure, servers, third-party networks and continuous internet connectivity, it cannot guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
12.2. If Show! becomes aware of any failure or malfunction, it shall attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.
12.3. THE SERVICE IS PROVIDED “AS IS”. SHOW! HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE CUSTOMER’S DATA AND THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
12.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT OR BREACH OF SHOW!’S CONFIDENTIALITY OBLIGATIONS, SHOW!, INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, ANY USE OF, OR THE INABILITY TO USE THE SERVICE OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE OR THE OUTPUT DATA.
12.5 .TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL MISCONDUCT, OR BREACH OF CONFIDENTIALITY
OBLIGATIONS, THE TOTAL AND AGGREGATE LIABILITY OF SHOW! (INCLUDING ITS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF), FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES PAYABLE TO SHOW! FOR THE SERVICES IN THE PRECEDING 12 MONTHS PRIOR TO THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM OCCURRED.
13.1. Customer agrees to indemnify and hold harmless Show! and its directors, officers, employees, and subcontractors, upon Show!’s request and at Customer’s expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third-party complaint, claim, plea, or demand in connection with Customer’s breach of any provision or representation in this Agreement.
13.2. If Show! seeks indemnification from Customer, it shall provide Customer with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at Customer’s expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that Show! may settle or reach compromise on any such claim without Customer’s consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on Customer. Show! shall have the right to participate, at its own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of its selection.
- Governing Law and Jurisdiction
14.1.Regardless of Customer’s jurisdiction of incorporation, the jurisdiction where it engages in business, or access the Service from, this Agreement and Customer’s use of the Service will be exclusively governed by and construed in accordance with the laws of the State of Israel, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than Israel. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or the Service, shall be submitted to the sole and exclusive jurisdiction of the competent court in the Tel Aviv district in Israel. Subject to Section 14.2 below, the Parties hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens.
14.2. Notwithstanding the foregoing, Show! may also lodge a claim against Customer: (a) pursuant to the indemnity clause above, in any court adjudicating a third party claim against Show!; and (b) for interim, emergency or injunctive relief in any other court having general jurisdiction over Customer.
15.1. Assignment. Customer may not assign this Agreement without obtaining Show!’s prior written consent. Any purported assignment without Show!’s prior written consent is void. To the greatest extent permissible by law, Show! may assign these Terms in their entirety, including all right, duties, liabilities, performances and obligations herein, upon notice to Customer and without obtaining Customer’s further specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of Show!’s equity or assets. By virtue of such assignment, the assignee assumes Show!’s stead, including all right, duties, liabilities, performances and obligations hereunder, and Show! shall be released therefrom.
15.2. Relationship of the Parties. The relationship between the Parties hereto is strictly that of independent contractors, and neither Party is an agent, partner, joint venturer or employee of the other.
15.3. Subcontracting. Show! may subcontract or delegate the performance of its obligations under this Agreement, or the provision of the Service (or any part thereof), to any third party of its choosing, provided however, that it remains liable to Customer for the performance of its obligations under this Agreement.
15.4. Complete Terms and Severability. This Agreement constitutes the entire and complete agreement between the Parties concerning the subject matter herein and supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the Parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both Parties.
15.5. No Waiver. Neither Party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other Party, of any terms or provisions of these Terms. The waiver, by either Party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.