MANTIS AD NETWORK MASTER SERVICES AGREEMENT
DATED FEBRUARY 12, 2016
This Master Service Agreement (“Agreement”) is an agreement between MANTIS Ad Network, LLC, a Colorado limited liability company (“MANTIS”) and you (if registering as an individual) or the entity you represent (if registering as a business) (“Member”). This Agreement contains the terms and conditions that govern your participation in the MANTIS Ad Network (“Network”). MANTIS and Member are sometimes each referred to generically herein as a “party” and collectively as the “parties.”
DEFINITIONS. The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.
“Network Data” means data (and each component of such data) that is collected by MANTIS from end users through the use of a pixel (or other script or code) installed on Member’s website, an integrated mobile SDK, or other mutually agreed upon means, including any data obtained from third parties while participating in the Network. Data that is subsequently derived from such information (such as through machine learning or other automated mechanisms) is also included.
“Ad(s)” is defined as advertisements provided by Advertiser(s).
“Advertiser”, as the context requires, shall mean the client of MANTIS for whom advertising is being delivered, which may be an individual, a company or an agency.
“Campaign Data” means performance and measurement data made available through the Network that relates to a client’s Ad campaign launched through the Network.
“MANTIS Data” means the combination of both Network Data and Campaign Data
“Member Data” means first-party data collected by Member prior to participating in the Network or while participating in the Network but collected in a manner that did not depend on MANTIS technology.
“Affiliate” means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party.
“MANTIS Administration Panel” for purposes herein is defined as the online web interface located at https://admin.mantisadnetwork.com that is made available to Network members for managing their account.
“Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
“Marks” means any trademarks, trade names, service marks, commercial symbols, slogans, trade dress or logos, and domain names agreed between the parties as applicable to this Agreement.
“Intellectual Property Rights” means (a) all inventions (whether or not patentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, divisions, continuations, continuations-in-part, revisions, renewals, extensions, and reexaminations thereof, (b) all works of authorship, including all mask work rights, database rights and copyrightable works, all copyrights, all applications, registrations and renewals in connection therewith, and all moral rights, (c) all trade secrets, (d) all registered and unregistered trademarks, service marks, trade dress, domain names, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith, (e) all derivative works of any of the foregoing; (f) any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force, and (g) all copies and tangible embodiments of all of the foregoing (a) through (f) in any form or medium throughout the world.
SERVICES PROVIDED. For each engagement under this Agreement, the services to be performed by MANTIS at Member request will be described in a separate agreement (“Member Agreement”). Each Member Agreement must state that is is made pursuant to this Agreement. The acceptance of this Agreement by the parties creates a set of agreed-upon provisions that will be incorporated into each Member Agreement. Each Member Agreement, including the incorporated provisions of this Agreement, will constitute a separate agreement. All references in this Agreement will be deemed to refer to the applicable Member Agreement and the incorporated provisions of this Agreement.
You agree that MANTIS Data is confidential and a trade secret of MANTIS. Except as expressly permitted by the next two paragraphs, you agree that you will not disclose MANTIS Data or any other information provided to you under this Agreement for any reason whatsoever. Without limiting the generality of the foregoing, you agree that you will not use or permit a third party to use MANTIS Data for retargeting a user or creating or appending data to a non-public profile regarding a user; to inform or improve advertising targeting on behalf of any other advertiser or advertising network; or for your own purposes.
You may disclose MANTIS Data: (1) to your employees and affiliates who need to know such information solely to facilitate your delivery of Campaigns under this Agreement; (2) on an Aggregated and Anonymous basis solely for reporting or marketing purposes; and (3) to the extent required to comply with a court order, law, or direction by a governmental or regulatory agency, provided that you first provide prior written notice to us of such anticipated disclosure and the opportunity for us to object to such disclosure or to seek confidential treatment of such MANTIS Data.
You may disclose Aggregated MANTIS Data to a third party that is serving as a mediation or analytics provider to you while participating in the Network (“Data Partner”) solely to the extent necessary for such Data Partner to help fulfill your obligations as a Network member, and subject to the restrictions set forth in the remainder of this paragraph. A Data Partner must be subject to a written non-disclosure agreement with you that restricts the Data Partner’s use and disclosure of MANTIS Data solely to the scope contemplated by this paragraph and does not permit the Data Partner to use MANTIS Data to improve its systems or to use MANTIS Data for the benefit of a third party. You must immediately disclose to us in writing your use of a Data Partner. Notwithstanding any non-disclosure agreement between us, we may disclose the restrictions set forth in this Agreement to a Data Partner. You will be liable for any violation of this Agreement by a Data Partner.
Unless authorized by you, we will not disclose your Member Data except (1) to disclose Ad Requests and Member Data to third parties to facilitate and optimize the serving and delivery of Ads, (2) on an Aggregated and Anonymous basis, or (3) to the extent required to comply with a court order, law, or direction by a governmental or regulatory agency. For clarity, we may use, collect and compile Publisher Data for our internal purposes, including delivering and targeting ads, reporting and inventory forecasting.
INDEMNITY. Member shall indemnify MANTIS for any claim, loss, liability, damage or expense (including reasonable attorneys’ fees) which may be asserted against it resulting from the Member’s material breach of this Agreement, and which does not arise from MANTIS’ breach of this Agreement, or MANTIS’ gross negligence, fraud, or willful misconduct. Member shall indemnify MANTIS from any claim, loss, liability, damage or expense (including reasonable attorneys’ fees) based on MANTIS’ products or services (excluding rights licensed from Member), including claims for actual or alleged infringement of any United States patent, copyright or other property right. MANTIS shall indemnify Member for any claim, loss, liability, damage or expense (including reasonable attorneys’ fees) which may be asserted against it resulting from the MANTIS’ material breach of this Agreement, and which does not arise from Member’s breach of this Agreement, or Member’s gross negligence, fraud, or willful misconduct.
CONFIDENTIALITY. The parties acknowledge that Member and MANTIS each own valuable trade secrets and other confidential information. Such information may include software code, routines, data, know-how, designs, inventions and other tangible and intangible items. All such information owned by the parties is defined as “Confidential Information”. This provision does not apply to Confidential Information that is a) in the public domain through no fault of the receiving party; b) was independently developed as shown by documentation; c) is disclosed to others without similar restrictions; or d) was already known by the receiving party. The parties agree that they will not, at any time during or after the term of this Agreement, disclose any Confidential Information to any person, and that upon termination of this Agreement, each party will return any Confidential Information that belongs to the other party. Each party will, upon learning of any unauthorized disclosure or use of the other party’s Confidential Information, notify such other party promptly and cooperate fully with such party to protect its Confidential Information.
WARRANTIES AND LIMITATION OF LIABILITIES. MANTIS warrants that it will perform the services under this Agreement using reasonable care and skill. Circumstances may arise where, because of a default of one of the parties, the non-breaching party may be entitled to damages from the other party. Both parties agree that in the event of a default by the other, regardless of the basis on which damages are claimed from the other (including fundamental breach, negligence, misrepresentation or other contract or tort claim), neither party shall be liable to the other for more than the total amount agreed upon in the Member Agreement. This limit also applies to any subcontract used by MANTIS in the performance of this Agreement. It is the maximum for which MANTIS and its subcontractors are collectively responsible. Neither party shall be liable to the other party for any special, incidental, consequential or indirect damages; nor shall either party be liable to the other party for any economic consequential damages (including lost profits or savings), even if the breaching party has been informed of the possibility. Member will not be entitled to make any claim or commence any proceeding arising out of any transactions pursuant to this Agreement unless the same is brought within one (1) year from the date the cause of action arose. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.THE WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
INDEPENDENT PARTIES. This Agreement confers no ownership or control and does not constitute an agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship within the legal/corporate meanings of those terms. Member’s representatives and personnel shall be deemed employees or subcontractors of Member and will not be considered employees, agents or subcontractors of MANTIS for any purpose whatsoever. The parties remain independent of each other and maintain their liabilities as their own, and neither party has authority to assume or create obligations or liabilities, express or implied, on behalf of or in name of the other.
TAXES. MANTIS shall have no responsibility for the reporting, collection, remittance or payment of any employment, payroll or wage taxes (whether federal, state or local), including but not limited to FICA, personal income and insurance taxes, imposed or owing with respect to any monies paid hereunder to Member, or any workers, employees and subcontractors hired, engaged or employed by Member (if any). At the end of each fiscal year, MANTIS will provide Member with Internal Revenue Service Form 1099 for federal income tax purposes, if required. To that end, Member will provide such information in the MANTIS Administration Panel as is required to enable MANTIS to prepare the Form 1099.
TERM AND TERMINATION. This Agreement shall take effect when digitally accepted by Member. In the event of any material breach of this Agreement by either party, the other party may terminate a Member Agreement if the party in material breach has failed to cure such breach within fifteen (15) days after receiving written notice of such breach. Each Member Agreement will continue in effect until terminated by one of the parties. If a Member Agreement specifies a term of months or a specific termination date, that Member Agreement will automatically renew upon expiration of the specified term unless the Member gives MANTIS five (5) days’ notice in writing of Member’s intention to so terminate. Termination of a Member Agreement will not terminate this Agreement. Termination of a Member Agreement will not relieve either party of any previously accrued obligations which by their nature are intended to survive termination.
TRAVEL AND EXPENSES. A Member Agreement may specify that Member is to pay MANTIS’ pre-approved expenses for actual and reasonable travel, meals and lodging. All reimbursement will be subject to any limits set forth in the Member Agreement.
ASSIGNMENT. Member shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without prior written approval from MANTIS will be null and void; however, Member understands and agrees that MANTIS may freely assign this Agreement in the event of a sale of all or substantially all of its stock or assets. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
GOVERNING LAW. This Agreement and any action related thereto will be governed, controlled, interpreted and defined by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in Colorado, and the parties hereby consent to the personal jurisdiction and venue of these courts.
Member. MANTIS shall make, publish, distribute or cooperate with any third party in making, publishing or distributing any public announcements, press releases, advertising, marketing, promotional or other materials (whether in print, electronically or otherwise) that use the Member’s name, logos or Marks with regard to the existence, execution or performance of this Agreement, unless Member notifies MANTIS in writing. In the event that Member notifies MANTIS to discontinue the use of the Member’s name, logos or Marks, MANTIS will make reasonable efforts to remove such information from current and future marketing materials.
MANTIS. Member shall not issue any press release, sales or marketing, promotional material, advertisements or similar materials discussing the parties’ relationship before obtaining MANTIS’ prior written agreement to any such material. MANTIS shall have the right to review and approve the use of their respective Marks in any such materials created by or on behalf of Member prior to the release thereof.
MODIFICATIONS. MANTIS may modify any of the terms and conditions contained in this Agreement or any operational documentation at any time and in its sole discretion by posting changes online. Changes to this Agreement will be effective as of the date we post them, unless we specify a different effective date. If you continue to participate in the Network following our posting of a revised agreement you:
Agree to be bound by this Agreement;
Acknowledge and agree that you have independently evaluated the desirability of participating in the Network and are not relying on any representation, guarantee or statement other than a expressly set forth in this Agreement;
Represent and warrant that you are lawfully able to enter into contracts and that you are and will remain in compliance with this Agreement and the Network participation requirements; and
Acknowledge that if any modification is unacceptable to Member, your only recourse is to terminate this Agreement.
COMPLETE AGREEMENT. This Agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
NON-EXCLUSIVITY. This agreement is nonexclusive and the parties may enter into similar agreements with other parties without restriction as to number, location, and application.
NETWORK DATA. You agree that Network Data is confidential and a trade secret of MANTIS. Except as expressly permitted by the next two paragraphs, you agree that you will not disclose Network Data or any other information we provide you under this Agreement for any reason. Without limiting the generality of the foregoing, you agree that you will not use or permit a third party to use Network Data for retargeting a user or creating or appending data to a non-public profile regarding a user; to inform or improve advertising targeting on behalf of any other advertiser or advertising network; or for your own purposes.
SURVIVAL. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4 (Indemnity), 5 (Confidentiality), 6 (Warrants and Limitation of Liabilities), and 17 (Network Data).
NOTICES. Any notice required to be delivered hereunder shall be deemed delivered in one (1) business day when sent electronically to firstname.lastname@example.org for MANTIS and to Member at the email address provided in the MANTIS Administration Panel. Member agrees to provide current, up-to-date contact information in the MANTIS Administration Panel.
Submissions about MANTIS, our Network, Site or Services should be made to:
MANTIS Ad Network, LLC
3519 NE 15th Ave STE 499
Portland, OR 97212-2356
Submissions, whether provided to MANTIS by mail, e-mail or otherwise, are non-confidential and shall become the sole property of MANTIS. MANTIS shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.