Standard Performance Optimization Terms
These Standard Terms (the “Terms”) are incorporated by reference into, and form an integral part of, the order form or other ordering document (the “Order”) entered into between Yobi Ventures, Inc. (“Yobi”) and the customer listed on the Order Form(the “Customer”) referencing these terms. By executing the Order, the Customer agrees to be bound by these Terms. In the event of any conflict between the Order and these Terms, the terms of the Order shall control. These Terms, together with the Order, are referred to as the “Agreement.”
1. Service. Subject to the terms and conditions of thisAgreement, Yobi shall provide advertising performance optimization services and/ordata enrichment services (the “Services”) for the Customer advertising campaign(s)listed on the Order (the “Campaign”).
2. Fees: Fees and payment terms are set forth on the Order. Customer is responsible for all taxes,including value-added, sales or use taxes, excluding taxes based on Yobi’s netincome. All fees are payable in US Dollars.
3. Confidentiality:
a) “Confidential Information” means the confidential information of aParty (“Discloser”) disclosed or made available to the other Party(“Recipient”), orally or in writing, that is designated as confidential or thatreasonably should be understood to be confidential given the nature of theinformation or the circumstances of disclosure, including without limitation,business and marketing plans, technology and technical information, pricinginformation, financial results and information, and business processes. Confidential Information shall not includeinformation that, without breach of any obligation to Discloser: (i) is orbecomes generally known to the public; (ii) was known to Recipient prior to itsdisclosure by Discloser; (iii) was independently developed by Recipient; or(iv) is received from a third party.
b) Except as otherwise requiredby law, Recipient shall not, and shall cause each of its directors, officers,employees, agents, and representatives (“Representatives”) not to: (i) discloseDiscloser’s Confidential Information to any person or entity other than itsRepresentatives who need to know the Confidential Information for the purposeof the performance of this Agreement and who are bound by obligations ofconfidentiality at least as restrictive as those contained in this Section 3;or (ii) use Discloser’s Confidential Information for any purpose other than ascontemplated by this Agreement.
c) Recipient will protect the confidentiality of Discloser’sConfidential Information in the same manner it protects its own using no lessthan reasonable care, promptly notify Discloser on discovery of unauthorizedaccess or acquisition of Confidential Information and reasonably cooperate withDiscloser’s efforts to investigate and remediate a breach of confidentiality.
d) If Recipient or any of its Representatives is requested, becomeslegally compelled, by a court or governmental body, to make any disclosure ofDiscloser’s Confidential Information, Recipient shall: (i) promptly notifyDiscloser in writing, to the extent legally permitted; (ii) assist Discloser atthe Discloser’s expense in obtaining a protective order or other reliableassurance that confidential treatment will be given to Confidential Informationdisclosed. Recipient may furnish onlythe portion of Discloser’s Confidential Information that Recipient is legallycompelled to disclose.
e) The Recipient agrees that, because an award of money damages isinadequate for any breach of this Section 3 by Recipient or any of itsRepresentatives, and any such breach would cause the Discloser irreparableharm, in the event of any breach or threatened breach of this Section 3 byRecipient or any of its Representatives, Discloser is entitled to equitablerelief, including injunctive relief and specific performance, without theposting of a bond or other security.
4. Data – Customer Responsibilities:
a) Privacy Obligations and Assurances.
(i) Customer will provide Yobi with data necessary toperform the Services including the data described in the applicable Order.Customer has sole responsibility for the accuracy of such data, as received byYobi (the “Customer Data”) as well as compliance with all applicable laws,rules and regulations, trade or marketing association policies and principles,privacy policies and third-party agreements related to the Customer Data(“Privacy Obligations”). Customer will provide adequate notice and will ensurethat all consents have been obtained (including any opt-in consents) asrequired by applicable Privacy Obligations for purpose of both Parties’performance of this Agreement. Customershall publish, maintain, and comply with a legally compliant privacy policy. Tothe extent pixels, cookies or similar technology is used on Customer's web siteor other online services in connection with this Agreement, Customer willmaintain and comply with a legally compliant cookie/pixel policy sufficient toevidence user consent to Yobi's uses of data collected through suchtechnologies. If the Services include Yobi’s pixel placement on Customer webpages, Customer consents to Yobi’s pixel policy found at Link to PixelPolicy
(ii) Customer will not transmit or expose to Yobi any(i) protected health information (as that term is used in the Health InsurancePortability and Accountability Act of 1996) or the Gramm-Leach-Bliley Act of1999, (ii) cardholder data (as regulated by the Payment Card Industry SecurityStandards Council), (iii) data regarding any non-US person or data originatingfrom, or transmitted from, any location outside the United States; or (iv) dataobtained from persons under the age of 18.
(iii) Customer represents and warrants: (i) Customerhas all rights necessary to provide Customer Data for use by Yobi, and CustomerData does not violate or infringe the intellectual property rights or otherrights of any third party; (ii) Customer’s collection, storage, and use ofCustomer Data, including supplying the Customer Data to Yobi as contemplatedhereunder, comply with all Privacy Obligations; (iii) no data or othermaterials distributed by Customer to Yobi will contain any virus, computercode, or other technology designed to disrupt or harm the operation of Yobi’sservices or systems; (iv) Customer Data will be, upon delivery, as current,accurate, and complete and not fraudulent; and (v) its data sources, if any, are responsible formaintaining all the standards set forth herein for consumer opt-in, datacollection, data integrity and compliance with Privacy Obligations.
(iv) In connection with its use of the Services,Customer will not, and will not allow or authorize or permit its users oragents to (i) infringe on or dilute any Yobi or third party copyright, patent,trademark, trade secret or other proprietary rights or rights of publicity orprivacy; (ii) violate any applicable law, statute, ordinance or regulation;(iii) act in a manner that is defamatory, libelous, trade libelous,threatening, harassing, or obscene; (iv) interfere with or disrupt any Yobi orthird party services or systems, (v) involve knowingly or negligentlydistributing viruses, Trojan horses, worms, or other similar harmfulprogramming routines; (vi) violate or encourage conduct that violates anyapplicable local, state, national or international laws or regulations; (vii)collect information from or about, or communicate with, minors under the age of18 or persons outside the United States of America; or (viii) reverse engineer,disassemble, decompile, decode, adapt, or otherwise attempt to derive or gainaccess to the source code of the Services or access or use the Services forpurposes of developing a competing software service or product; (ix) involve the unauthorized entry to anymachine accessed using the Services; or (x) determine eligibility for, orpricing of, employment, credit, health care, insurance, housing, or education.
b) Upon receipt of the Customer Data for a Campaign, Yobi will reviewand determine whether the data received meets Yobi’s activation criteria. Ifthere are deficiencies, Yobi will inform Customer in writing and Customer willresubmit corrected data within five (5) days and Yobi will re-review. The applicable Campaign start and end datewill be adjusted accordingly to account for the delay.
c) If Yobi deems applicable to a Campaign, Customer will execute theData Access Letter attached as Exhibit A for each Campaign.
5. Data – Yobi Responsibilities
c) Yobi will implement and maintain reasonable and appropriatetechnical, administrative and physical security measures designed to protectagainst unauthorized access to or use of Customer Data.
6. Compliance with Laws andDPA. Each Party shall comply withall applicable local, state, national and foreign laws in the performance of thisAgreement, including laws related to data protection, privacy andsecurity. Customer agrees that it hassole control over the nature and scope of the Customer Data and the origin orlocation of users. The Parties will comply with Yobi’s Data Processing Addendum(“DPA”), found at: Link to DPA. In theevent of any conflict between these Terms, any Order and the DPA, the terms ofthe DPA shall govern.
7. Proprietary Rights.
a) Yobi retains all right, title and interest in and to its services,technology, processes and methodology and any enhancements, modifications, orderivative works thereof, its data, databases, data systems and structures,algorithms, vector embeddings, and other software developed by Yobi, includingall related intellectual property rights.
b) Customer retains all right, title and interest in and to theCustomer Data as provided to Yobi.
c) Customer hereby assigns to Yobi all ownership rights in anysuggestions, enhancement requests, recommendations or other feedback providedby Customer relating to Yobi’s services.
d) All results of the Services (whether data,algorithms, vector embeddings, models or any other form or format) provided byYobi hereunder and any derivatives thereof or representations thereof(collectively, the “Results”) are solely owned by Yobi and Customer has norights therein. Customer shall not,shall not attempt to or permit or authorize any third party to reverse engineeror re-identify the Results. To theextent reporting, analysis or other materials specific to the applicable Campaignare provided to Customer, Yobi retains ownership except to the extent CustomerData is incorporated therein, and Customer may use such materials for its internaluse only.
8. Disclaimers. Otherthan as specifically set forth herein, Yobi makes no warranty, express,implied, or statutory, regarding the Service and Yobi expressly disclaims allother warranties, including, but not limited to, the implied warranties ofmerchantability, fitness for a particular purpose, title and non-infringementof third-party rights. Yobi does notwarrant that the Service will meet Customer’s requirements, or that theoperation and results of the Services will be uninterrupted or error-free, orthat defects in the Services will be corrected. No oral or written information or advice given by Yobi or its authorizedrepresentatives shall create a warranty or in any way increase the scope of anywarranty hereunder.
9. Indemnification.
a) Yobi will defend at its own expense any action against Customerbrought by a third party alleging that the Service, as delivered, infringes anythird party U.S. patents or any copyrights or misappropriate any trade secrets. Yobi will indemnify and hold Customerharmless against those costs and damages finally awarded against Customer inany such action that are specifically attributable to such claim or those costsand damages agreed to in a monetary settlement of such action. Notwithstanding the foregoing, Yobi will haveno obligation or liability under this Section 9(a) or otherwise with respect toany infringement claim based upon any use of the Service not in accordance withthis Agreement. This Section 9(a) statesYobi’s entire liability and the Customer’s exclusive remedy for any claims ofinfringement.
b) Customer will defend at itsown expense any action against Yobi brought by a third party (i) arising from Customer’s breach of thisAgreement; or (ii) alleging that Yobi’s possession or use of the Customer Datain compliance with this Agreement violates or misappropriates the rights of, or has otherwise harmed, athird party, and Customer will indemnify and hold Yobi harmless against thosecosts and damages in any such action that are specifically attributable to suchclaim or those costs and damages agreed to in a monetary settlement of suchaction.
c) To be entitled to the defense and indemnification obligations of theother Party under this Agreement, the indemnified Party must (i) notify theindemnifying Party promptly in writing of such claim or allegation, settingforth in reasonable detail the facts and circumstances surrounding the claim;(ii) give the indemnifying Party sole control of the defense thereof and anyrelated settlement negotiations, including not making any admission ofliability or take any other action that limits the ability of the indemnifyingParty to defend the claim; and (iii) cooperate and, at the Indemnifying Party’srequest and expense, assist in such defense.
10. Limitation of Liability.
a) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THISAGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY)SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO YOBI (OR IF THE SERVICES ARE FUNDED BY YOBI OR A THIRD PARTYYOBI BUSINESS PARTNER, THE AMOUNT OF SUCH FUNDING AS REFLECTED ON YOBI’SRECORDS) IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
b) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTYFOR (i) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA,(ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY(iii) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR(iv) LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER INCONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTYHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c) The disclaimers andlimitations on liabilities contained in Sections 10 (a) and 10(b) above shallnot apply to the obligations set forth in Sections 3 (Confidentiality), 5(Data), 7 (Proprietary Rights), and 9(Indemnification).
11. Term & Termination.
a) This Agreement commences onthe Order Effective Date and continue in effect until the Campaign End Datestated in the Order, unless otherwise agreed or earlier terminated as set forthherein.
b) Either Party may terminate thisAgreement for cause: (i) if the other Party has materially breached thisAgreement and such breach is not cured within thirty (30) days after receipt writtennotice of such breach; or (ii) if the other Party becomes the subject of apetition in bankruptcy or any other proceeding relating to insolvency,receivership, liquidation or assignment for the benefit of creditors.
c) Upon expiration or termination of this Agreement all Services willimmediately cease. Upon a Party’swritten request, the other Party will erase, delete or destroy all copies ofConfidential Information of the other Party, and certify in writing to theother Party that such Party has fully complied with these requirements. A Party may retain archived copies ofConfidential Information or copies that are incapable of being destroyedbecause it would be unduly burdensome or cost prohibitive, provided that allsuch copies remain subject to the restrictions herein for so long as they areretained.
d) Termination shall not relieve Customer of the obligation to pay anyfees accrued or payable to Yobi prior to the effective date oftermination. If this Agreement isterminated by Yobi for cause, Customer shall remain responsible for payment infull under this Agreement, regardless of whether such amounts have beeninvoiced or are payable at the time of such termination.
e) The provisions of Sections 2, 3, 4(a), 5, 6, 7, 8. 9, 10, 11 (c), (d)and (e), and 12 shall survive theexpiration or earlier termination of this Agreement.
12. General Provisions.
a) The Parties are independent contractors. This Agreement does not create a partnership,franchise, joint venture, agency, or fiduciary relationship between theParties. Neither Party will have the power to bind the other or incurobligations on the other Party’s behalf without the other Party’s prior writtenconsent or as contemplated in an Order. There are no third-party beneficiariesto this Agreement.
c) Notices shall be sent via email to the email address for the Partiesset forth in the Order and shall be deemed received on the day it was sent, orif not sent on a business day, the following business day; provided that emailnotice must be confirmed by prepaid US Mail, return receipt requested, or via aprepaid recognized overnight courier service. Each Party may update its contactinformation in accordance with thisSection.
d) Failure by either Party to enforce any provision of this Agreementis not a waiver of future enforcement of that or any other provision of thisAgreement.
e) If any provision of this Agreement is held by a court of competentjurisdiction to be unenforceable the provision shall be modified by the courtand interpreted so as best to accomplish the objectives of the originalprovision to the fullest extent permitted by law, and the remaining provisionsof this Agreement shall remain in force and effect.
f) Neither Party may assign or transfer any of its rights under thisAgreement to any third party without the other Party’s prior written consent,which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party has the right to assign thisAgreement to any successor to its business or assets to which this Agreementrelates, whether by merger, sale of assets, sale of stock, reorganization orotherwise. Any attempted assignment inviolation of this Section 12(f) will be null and void. All provisions of this Agreement shall bebinding upon and inure to the benefit of the successors and permitted assignsof the Parties.
g) The laws of the State of NewYork, USA, without regard to any conflict of laws principles, govern thisAgreement and all matters arising out of or relating to this Agreement. Any dispute, action, claim or cause of actionarising out of this Agreement or the Services shall be only brought in and issubject to the exclusive jurisdiction of the state and federal courts locatedin New York, New York, USA. Each Party waives, to the fullest extent ofthe law, any objection to venue in such courts.
h) Yobi may identify Customer as a customer of Yobi on Yobi’s websiteas well as within any written and/or electronic marketing material relating toYobi’s products and/or services. Yobi may prepare, use, display and publishcase studies, white papers and similar marketing materials describing Yobi’sproducts and services provided under this Agreement and related performanceresults, outcomes and learnings using Customer’s name and logo (“Branded CaseStudies”). Use of Branded Case Studies is limited to virtual or in personmeetings, private presentations, and invitation-only events. Yobi will not publicly publish, distribute ordisplay Branded Case Studies, such as on public facing pages of its web site orthrough broadcast commercials, or mass market channels. Yobi retains allownership of Branded Case Studies and all intellectual property rights therein.
i) Neither Party will be liable for any failure in performance due tocircumstances beyond its reasonable control, including without limitation, actsof God; acts of government; flood; fire; earthquakes; civil unrest; acts ofterror, epidemics, pandemics, quarantines, strikes or other labor problems,computer, telecommunications, Internet service provider or hosting facilityfailures or delays involving hardware, software or power systems not withinsuch Party’s possession or reasonable control, and denial of service attacks.For the avoidance of doubt, a force majeure event shall not include (a)financial distress, (b) changes in the market prices or conditions, or (c) aParty's financial inability to perform its obligations hereunder.
k) This Agreement, including the DPA and all Orders and Exhibits whichare incorporated by reference, constitutes the complete and exclusiveexpression of the Parties’ agreement on the matters contained therein. All prior agreements, proposals orrepresentations, written or oral, areexpressly superseded by this Agreement. In entering this Agreement, neither Party has relied upon any statement,representation, warranty or agreement of the other Party except for thoseexpressly contained in this Agreement. This Agreement may not be modified except by written instrument signed by bothParties.
DATA ACCESS LETTER
Customer: ___________________________________
Campaign [Insert Campaign Name, Date or OtherIdentifying Reference]
Platform: ___________________________________
Delivery: [Placeholder for delivery protocol toCustomer if needed]
Yobi is performing digital advertising optimization services for the Customer’sCampaign via a services agreement between Yobi and Platform. Yobi has offeredto provide Customer data enrichment services by adding additional relevant datafrom Yobi (“Yobi Data”) to the Campaign conversion data and returning theenriched data file directly to Customer (“Enriched Campaign Feed”). TheEnriched Campaign Feed is a one-time feed to be delivered after the end of theCampaign.
Customer desires this additional Yobi service, and grants Yobi a license to the Campaign conversion data and log files for the limited purpose of creating the EnrichedCampaign Feed and delivering it to Customer. Yobi grants Customer a license to the Enriched Campaign Feed for Customer’s internal use only. All licenses granted are for the territory of the United States only. Yobi does not guarantee any specific results from the Enriched Campaign Feed.
Customer confirms it has all rights necessary to grant the license granted to Yobi in this letter. Yobi confirms it has all rights necessary to permit Customer to use the Yobi Data as incorporated into the Enriched Campaign Data for Customer’s internal use. Each of Customer and Yobi agree to indemnity, defend and hold the other harmless from any third party claim arising from a breach of the assurances made in this paragraph .
This letter is the entire agreement of the parties with respect to the subject matter hereof and may be amended only by written agreement signed by both parties.
AGREED:
[CUSTOMER] YOBI VENTURES, INC
By:____________________________ By:___________________________
Name:_________________________ Name:________________________
Title:___________________________ Title:_________________________
Date:___________________________ Date:_________________________