Demand Partner
Terms & Conditions
The following clauses supplement and form part of Insticator Inc. (DBA The COOL Company) (“Company”) Agreement and apply to demand partners, demand-side platforms (“DSPs”), agencies, trading desks, and any other entities (“Demand Partner”) that access the Company’s supply and Advertising Inventory programmatically for the purpose of purchasing Ads via real-time bidding. The Company reserves the right to update and revise these terms from time to time in its sole discretion. Last revised: July 2026.
Definitions
The following terms, when used in this Agreement with initial capital letters, shall have the meanings set forth below. Terms defined in the main body of the Company Advertising Terms of Service (“Agreement”) and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
“Ad” or “Ads” means any unit of advertising content, including display, video, native, audio, connected television, or any other advertising format, submitted by Demand Partner for delivery to the Company via the OpenRTB protocol or any other approved integration method.
“Advertising Inventory” means digital advertising placements, including web, in-app, video, connected television (CTV), over-the-top (OTT), digital out-of-home (DOOH), and widget-based inventory, made available by the Company.
“Agreement” means the Company Advertising Terms of Service, as amended from time to time, together with this Addendum and all applicable insertion orders.
“Applicable Laws” means all applicable federal, state, local, and international laws, regulations, rules, directives, and self-regulatory requirements in force from time to time that are relevant to a Party’s performance under this Agreement, including without limitation applicable advertising, consumer protection, data privacy, intellectual property, and anti-corruption laws.
“Bid Response Creatives” means all advertising creatives, ad tags, tracking pixels, ad markup, and associated materials submitted by Demand Partner dynamically within bid responses transmitted in connection with the Demand Services.
“Bid Stream Data” means all data generated through or accessible via the Company’s services in connection with Demand Partner’s participation in programmatic auctions, including bid request data, inventory attributes, publisher identifiers, user signals, geo signals, and contextual signals transmitted as part of the OpenRTB bid request process.
“Ad Fraud” means any deliberate act or practice designed to generate, simulate, or misrepresent advertising activity — including but not limited to impressions, clicks, views, or other measurable events — through illegitimate means, including without limitation the use of bots, click farms, domain spoofing, ad stacking, pixel stuffing, or any other deceptive method intended to create the appearance of genuine human engagement with an Ad.
“Cancellation Fee” has the meaning set forth in Clause G.2 of this Addendum.
“CCPA” means the California Consumer Privacy Act of 2018, as amended, including by the California Privacy Rights Act of 2020, together with all regulations promulgated thereunder.
“Commencement Date” means the date on which Demand Partner first accepts this Agreement, whether by executing an insertion order, clicking an acceptance button, or otherwise accessing or using the Demand Services.
“COPPA” means the Children’s Online Privacy Protection Act of 1998, as amended, and all regulations promulgated thereunder.
“Demand Partner” means the legal entity entering into this Agreement, including demand-side platforms (DSPs), SSPs, advertising agencies, trading desks, and any other entity accessing the Company’s services for the purpose of purchasing Advertising Inventory programmatically.
“Force Majeure Event” has the meaning set forth in Clause M.2 of this Addendum.
“GDPR” means, collectively: (a) the EU General Data Protection Regulation (EU) 2016/679; (b) the UK GDPR as defined in section 3(10) of the UK Data Protection Act 2018; and (c) the Swiss Federal Data Protection Act, in each case as amended or replaced from time to time.
“GPC” means the Global Privacy Control signal, as defined and maintained by the W3C and applicable under the CCPA and other applicable privacy laws.
“Payment Due Date” has the meaning set forth in Clause J.1 of this Addendum.
“Publisher” means any publisher, content owner, app developer, or other supply partner that has contracted with the Company to make Advertising Inventory available for purchase through the Company’s services.
“Service Policies” means the Company’s then-current ad quality standards, creative specifications, technical requirements, and other company policies applicable to Demand Partner, as published and updated by the Company from time to time.
“Taxes” has the meaning set forth in Clause Q.1 of this Addendum.
“TCF” means the IAB Europe Transparency and Consent Framework, as updated from time to time.
“Term” means the period during which this Agreement is in effect, commencing on the Commencement Date and continuing until terminated in accordance with the provisions of this Addendum or the Agreement.
“The COOL Company Indemnitees” means the Company, its affiliates, and its and their respective directors, officers, employees, agents, representatives, successors, and assigns.
A. Privacy and Data Protection
A.1. The Company and its Demand Partners share a commitment to responsible data practices. In keeping with this shared commitment, Demand Partner shall ensure that all personal data accessed or processed in connection with Company’s services is handled in full compliance with all Applicable Laws relating to data privacy, data protection, and electronic marketing, including without limitation the California Consumer Privacy Act (“CCPA”), the General Data Protection Regulation (“GDPR”), the Children’s Online Privacy Protection Act (“COPPA”), and any other applicable federal, state, or international privacy laws, etc.
A.2. Demand Partner shall participate in good-faith compliance with applicable consent management frameworks, including the IAB Europe Transparency and Consent Framework (“TCF”) and the IAB CCPA Compliance Framework. This includes honoring all consent and opt-out signals transmitted in bid requests, and refraining from bidding on or serving Ads to users who have not provided the applicable consent or who have exercised their opt-out rights, where such signals are communicated through the bid request.
A.3. Demand Partner shall promptly notify the Company in writing (and in any event within forty-eight (48) hours) of any actual or suspected breach, unauthorized access, or other security incident involving personal data accessible through the Company’s services, and shall provide all relevant information and cooperate constructively with the Company as reasonably required to address and mitigate any such incident.
B. Indemnification
B.1. Demand Partner shall indemnify, defend, and hold harmless the Company, its Affiliates, and its and their respective directors, officers, employees, agents, representatives, successors and assigns (collectively, “The COOL Company Indemnitees”) from and against all third-party claims, suits, proceedings, liabilities, damages, losses, costs, and expenses (including reasonable outside attorneys’ fees and disbursements) arising out of or related to: (a) Demand Partner’s breach or alleged breach of any representation, warranty, covenant, or obligation under this Agreement; (b) any Bid Response Creatives submitted by Demand Partner, including without limitation claims of intellectual property infringement, false advertising, defamation, violation of right of publicity or privacy, or violation of any Applicable Laws; (c) Demand Partner’s use of data in connection with the Company’s services, including any violation of any data privacy or data protection laws; (d) any Ad Fraud engaged in, facilitated, or knowingly benefited from by Demand Partner; (e) any violation of any third party’s rights by Demand Partner, including intellectual property, privacy, or publicity rights; or (f) Demand Partner’s negligence or willful misconduct.
B.2. The Company will use commercially reasonable efforts to keep Demand Partner informed of any claim for which indemnification is sought, with the understanding that: (a) any failure or delay in providing such notice shall not affect or reduce Demand Partner’s indemnification obligations, except to the limited extent that Demand Partner can demonstrate actual and material prejudice to its ability to defend the specific claim at issue, and then only proportionate to such demonstrated prejudice; and (b) the Company retains the discretion to handle any claim independently without any obligation to involve Demand Partner. Where the Company elects to involve Demand Partner in the defense of a claim, the following shall apply: (i) Demand Partner shall promptly assume responsibility for all reasonable defense costs and expenses, including outside attorneys’ fees, upon the Company’s request; (ii) the Company shall retain full authority over all key strategic decisions in the defense, including the selection of legal counsel, litigation approach, and settlement discussions; (iii) Demand Partner shall cooperate in good faith with the Company and its chosen counsel, making available relevant personnel, records, and information as reasonably needed; (iv) Demand Partner shall not take any unilateral action, make any admission, or enter into any arrangement in connection with an indemnified claim without the Company’s prior written consent; and (v) no settlement, compromise, or resolution of any indemnified claim shall be agreed to by Demand Partner without the Company’s prior written consent, which the Company may withhold at its discretion, and any settlement must include a full, unconditional, and irrevocable release of all the Company Indemnitees from all related claims.
C. Data Usage Restrictions
C.1. All data generated through or accessible via the Company’s service in connection with Demand Partner’s participation in programmatic auctions, including bid request data, inventory attributes, publisher identifiers, user signals, geo signals, and contextual signals (collectively, “Bid Stream Data”), is and shall remain the exclusive property of the Company and/or its Publishers, Partners, Affiliates. Nothing in this Agreement shall be construed as a transfer or assignment of any ownership right in Bid Stream Data to Demand Partner.
C.2. Demand Partner is granted a limited, non-exclusive, non-transferable, non-sublicensable right to use Bid Stream Data solely for the purpose of evaluating inventory and submitting bids through the Company’s services in real time. This right expires upon the conclusion of each individual auction or bid opportunity.
C.3. Demand Partner shall not: (a) use Bid Stream Data to build, augment, train, or enrich any audience segment, user profile, data product, machine learning model, or identifier graph for use outside the Company’s services; (b) share, sell, license, sublicense, or otherwise transfer Bid Stream Data to any third party, including affiliates, data brokers, data cooperatives, or identity resolution providers; (c) combine Bid Stream Data with any other data set for any purpose other than real-time bid evaluation within the Company’s services; (d) retain any Bid Stream Data beyond the period strictly necessary for the submission of a bid response (and in any event for no longer than twenty-four (24) hours), except to the extent explicitly required by Applicable Laws; or (e) use any Publisher identity, domain, or inventory attribute disclosed in a bid request to contact or establish a direct commercial relationship with any Publisher without the Company’s prior written consent.
C.4. Notwithstanding any other provision of this Agreement, the Company shall have, and is hereby granted, a perpetual, irrevocable, worldwide, non-exclusive, sublicensable, and transferable right to collect, process, use, analyze, and disclose all data generated in connection with Demand Partner’s use of the services (including campaign performance data, bid data, win/loss data, and aggregate demand trends) for the Company’s own business purposes, including to provide, operate, improve, and market the Company’s products and services, and to detect and prevent Ad Fraud.
D. Ad Quality
D.1. In the Company’s capacity as a supply-side platform (“SSP”), all advertising creatives, ad tags, tracking pixels, and associated ad markup are submitted by Demand Partner dynamically within bid responses (“Bid Response Creatives”). the Company does not traffic, host, pre-approve, or manually execute any advertising campaigns on Demand Partner’s behalf. Demand Partner is responsible for: (a) the content, format, and technical integrity of all Bid Response Creatives; (b) the proper implementation, testing, and quality assurance of all creatives prior to and during their submission through the Demand Services; and (c) ensuring that all Bid Response Creatives comply with the requirements set forth in this Clause D at the time of submission and on a continuous basis throughout the Term.
D.2. All Bid Response Creatives submitted by Demand Partner must comply with: (a) the Company’s then-current creative specifications, ad quality policies, and technical requirements, as made available by the Company from time to time (“Service Policies”); (b) all applicable IAB Tech Lab OpenRTB specifications and standard ad format requirements, including the IAB LEAN Ads Program and the Coalition for Better Ads standards; (c) all Publisher-specific creative restrictions communicated through the bid request or otherwise made available by the Company; and (d) all Applicable Laws, including without limitation truth-in-advertising, consumer protection, intellectual property, and data privacy laws. The Company’s determination as to whether any Bid Response Creative complies with the Service Policies or any Publisher’s requirements shall be final and binding on Demand Partner.
D.3. Demand Partner represents and warrants, on a continuing basis throughout the Term, that: (a) it has obtained and shall maintain all rights, licenses, clearances, and consents necessary for the submission, rendering, display, and performance of all Bid Response Creatives, including without limitation all rights to creative assets, trademarks, data, and any third-party content incorporated therein; (b) no Bid Response Creative will infringe or misappropriate any third party’s intellectual property, privacy, or publicity rights; (c) all Bid Response Creatives are and shall remain free from malware, ransomware, auto-redirects, drive-by downloads, unauthorized data collection scripts, crypto-mining code, and any other malicious, deceptive, or disruptive code or functionality; (d) all Bid Response Creatives are truthful, non-deceptive, and compliant with all Applicable Laws; and (e) Demand Partner’s ad serving infrastructure and creative delivery systems are and shall remain secure, monitored, and free from compromise that could result in the delivery of non-compliant or malicious creatives.
D.4. Demand Partner shall implement, maintain, and operate an active ad quality scanning and monitoring service covering all Bid Response Creatives prior to and during their submission through the Demand Services. Such service shall be designed, at a minimum, to detect and prevent the submission of creatives containing malware, auto-redirects, unauthorized tracking, and any other attributes identified as non-compliant by the Company’s Service Policies or applicable industry standards. Demand Partner shall promptly notify the Company in writing upon becoming aware of any creative quality incident, malicious creative, or compromised ad serving infrastructure that may have affected Bid Response Creatives submitted through the Demand Services.
D.5. The Company operates automated and manual creative review and filtering mechanisms as part of its services. Notwithstanding the foregoing, Demand Partner acknowledges that: (a) the Company does not pre-approve Bid Response Creatives and makes no representation that its filtering mechanisms will detect or block all non-compliant creatives; and (b) the Company’s failure to detect or block any non-compliant creative shall not diminish Demand Partner’s responsibility or liability therefor. the Company reserves the right, in its sole and absolute discretion and without prior notice or liability to Demand Partner, to block, filter, or otherwise prevent the rendering of any Bid Response Creative that the Company determines, in its sole judgment, to be non-compliant with the Service Policies, any Applicable Laws, any Publisher’s content restrictions, or that may otherwise harm the Company’s services, Publishers, Partners, Affiliates, end users, or business reputation. The exercise of this right shall not give rise to any credit, makegood, or other liability of the Company, and shall not relieve Demand Partner of its payment obligations in respect of any auction won prior to such blocking.
E. Inventory
E.1. The Company does not guarantee the availability of any particular Advertising Inventory, placement, publisher site, application, or channel at any given time, in any specific volume, at any particular price, or on any specified date. From time to time, the Company may modify, limit, or discontinue certain Advertising Inventory or supply sources based on business, operational, technical, or commercial considerations without prior notice or liability to Demand Partner.
E.2. Demand Partner acknowledges and agrees that: the Company makes no representation, warranty, or commitment of any kind regarding editorial adjacency outcomes
E.3. The Demand Partner is responsible for configuring and maintaining all brand safety parameters, including keyword blocklists, category exclusions, and other targeting restrictions prior to and throughout the transacting period. The Company will apply commercially reasonable efforts to enforce and deliver on these configured parameters during all transactions through its services.
F. Traffic Quality
F.1. The Company’s determinations regarding Ad Fraud are informed by MRC (Media Ratings Council) guidelines (where MRC-aligned data is available), including its own internal detection methodologies, 3rd party providers data and other industry-recognized signals as it deems appropriate.
F.2. The Company is committed to maintaining high traffic quality standards across its publisher network through a combination of tools and resources, including MRC-accredited third-party vendors and proprietary in-house detection solutions.
F.3. Demand Partner shall not engage in or benefit from Ad Fraud. Demand Partner shall implement reasonable controls to prevent fraudulent activity, notify the Company promptly of any suspected Ad Fraud, and cooperate fully with the Company’s investigations.
G. Cancellation and Termination
G.1. The Company may terminate this Agreement immediately upon written notice if Demand Partner: (a) materially breaches any provision of this Agreement and fails to cure such breach within five (5) business days of written notice (provided that breaches of Clauses F, H (Prohibited Conduct), and the payment provisions of Clause J shall be deemed non-curable); (b) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to any bankruptcy, receivership, or similar proceeding; (c) engages in conduct that, in the Company’s reasonable determination, damages or threatens to damage the Company’s reputation, services, or relationships with its Publishers, Partners, and Affiliates; (d) engages in any Prohibited Conduct under Clause H.
G.2. Upon cancellation or termination of this Agreement: (a) all outstanding amounts, including any applicable Cancellation Fees, shall become immediately due and payable; (b) Demand Partner’s access to the Company’s services may be suspended or terminated at the Company’s election; and (c) all provisions that by their nature survive termination shall remain in full force and effect.
G.3. Any outstanding fees or unpaid amounts remaining after termination shall accrue a late payment fee of 0.5% per day until paid in full.
H. Prohibited Conduct
H.1. Demand Partner shall not, and shall not permit any third party to: (a) engage in, facilitate, or knowingly benefit from any form of Ad Fraud, as defined in Clause F above; (b) use Bid Stream Data (as defined in Clause C.1) for any purpose other than real-time bidding through the Company’s services; (c) submit Ads on behalf of any advertiser promoting illegal products or services, or that are subject to regulatory action in any jurisdiction; (d) target or knowingly deliver Ads to minors in violation of any Applicable Laws, including COPPA; (e) engage in any form of retargeting based on sensitive categories (including health, financial distress, political affiliation, or sexual orientation) without Demand Partner having obtained all required consents under Applicable Laws. Demand Partner acknowledges that engaging in, or being suspected of engaging in, any of the foregoing constitutes a material breach of this Agreement.
I. Discrepancy Resolution
I.1. All payments owed by the Demand Partner to the Company shall be calculated solely on the basis of the Company’s measurement systems, ad servers, and reporting platforms (the “Company Measurements”). The Company Measurements shall constitute the sole and authoritative record for all event counts, and any other metrics used to calculate amounts due under this Agreement. The Company shall use commercially reasonable efforts to ensure the accuracy of the Company Measurements. In the event that the discrepancy between the Company Measurements and the Demand Partner’s measurements exceeds ten percent (10%) for the applicable reporting period, the Parties agree to work together in good faith to investigate the cause of the discrepancy and determine an appropriate resolution. Unless otherwise mutually agreed in writing, the Company Measurements shall remain controlling for billing purposes.
I.2. In the event that Demand Partner believes it has identified a discrepancy between the Company’s Measurements and its own reporting for any given billing period, Demand Partner must notify the Company in writing within ten (10) business days of receipt of the applicable invoice, accompanied by full supporting documentation including relevant reporting screenshots, log-level data, and any applicable third-party verification reports. Demand Partner acknowledges that the submission of a discrepancy notice is a request for the Company to conduct a good-faith review and does not constitute a basis for withholding, deferring, or reducing any payment obligation. If Demand Partner does not submit a discrepancy notice within the ten (10) business day period, the Company’s Measurements for the applicable billing period will be deemed accepted for billing reconciliation purposes, and the parties will consider the related measurement figures to be final for that billing period.
J. Payment Terms
J.1. Demand Partner shall remit payment to the Company for all Advertising Inventory purchased from the Company in full within thirty (30) days of the date of each invoice issued by the Company (“Payment Due Date”). All amounts are stated and payable in U.S. dollars unless otherwise agreed in writing by the Parties. The amounts payable shall be in accordance with the Company’s Measurements.
J.2. Demand Partner shall remain fully responsible for all payment obligations under this Agreement. Payment is not contingent upon receipt of funds from any advertiser, agency, client, or other third party.
J.3. Any overdue amount shall accrue interest at the rate of 0.5% per day (or the maximum rate permitted by Applicable Laws, if lower), compounded monthly, until paid in full. If any payment remains overdue for more than fifteen (15) days after the due date, the Company may, without liability, suspend Demand Partner’s access to its services until all outstanding amounts, including accrued interest, are paid in full. Demand Partner shall reimburse the Company for all reasonable costs incurred in collecting overdue amounts, including reasonable legal and collection fees.
J.4. Each Party shall be solely responsible for all taxes, duties, levies, and other governmental charges imposed on it in connection with this Agreement.
K. Reporting and Audits
K.1. Demand Partner shall provide the Company with accurate, complete, and timely reporting in respect of all advertising activity transacted through the Company’s services. Such reporting shall be made available to the Company through Demand Partner’s platform, API, or such other means as the Company may reasonably designate, on a frequency and in a format specified by the Company from time to time.
K.2. The Company (or an authorized third party) shall have the right, upon reasonable advance written notice of not less than five (5) business days (or immediately in the event of suspected Ad Fraud, data misuse, or material breach), to audit Demand Partner’s records, systems, and processes reasonably related to Demand Partner’s use of the services, compliance with this Agreement, and treatment of Bid Stream Data. Demand Partner shall cooperate fully with any such audit and shall provide access to all relevant personnel, systems, and records.
L. Limitation of Liability
L.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE TO DEMAND PARTNER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR DEMAND PARTNER’S USE OF THE COMPANY’S SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
L.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE COMPANY’S TOTAL AGGREGATE LIABILITY TO DEMAND PARTNER ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM, SHALL NOT EXCEED THE TOTAL DEMAND FEES ACTUALLY PAID BY DEMAND PARTNER TO THE COMPANY DURING THE ONE (1) CALENDAR MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE. FOR THE AVOIDANCE OF DOUBT, THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT ENLARGE THIS LIMIT.
L.3. Demand Partner acknowledges and agrees that the limitations of liability set forth in this Clause L reflect a reasonable allocation of risk and form an essential basis of the bargain between the Parties. The Company would not have entered into this Agreement or provided access to its services in the absence of such limitations. The limitations set forth in this Clause L shall apply to the fullest extent permitted by Applicable Laws, notwithstanding any failure of essential purpose of any limited remedy. Nothing in this Clause L shall limit or exclude: (a) either Party’s liability for fraud or intentional misconduct; or (b) Demand Partner’s payment obligations under Clause J of this Agreement, which shall remain absolute and unconditional in all circumstances.
M. Representations and Warranties
M.1. Demand Partner represents, warrants, and covenants to the Company, as of the Commencement Date and on a continuing basis throughout the Term, that: (a) Demand Partner is a legal entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and is duly qualified to do business in all jurisdictions in which it operates in connection with this Agreement; (b) Demand Partner has full legal capacity, power, and authority to enter into, execute, and perform its obligations under this Agreement, and this Agreement constitutes a legal, valid, and binding obligation of Demand Partner, enforceable against it in accordance with its terms; (c) the execution, delivery, and performance of this Agreement by Demand Partner does not and will not conflict with or violate any Applicable Laws, any order of any court or governmental authority, or any agreement to which Demand Partner is a party or by which it is bound; (d) there is no pending or, to Demand Partner’s knowledge, threatened action, suit, investigation, or proceeding against Demand Partner that would reasonably be expected to impair Demand Partner’s ability to perform its obligations under this Agreement; and (e) all information provided by Demand Partner to the Company in connection with this Agreement, including in any registration, or onboarding process, is and shall remain accurate, complete, and not misleading in any material respect.
M.2. Demand Partner further represents, warrants, and covenants that: (a) it shall at all times comply with all Applicable Laws in connection with its use of the Company’s services and its performance of its obligations under this Agreement, including without limitation all applicable advertising, consumer protection, data privacy, intellectual property, and anti-corruption laws; (b) it has implemented and shall maintain adequate internal compliance policies, procedures, and controls sufficient to ensure ongoing adherence to this Agreement and all Applicable Laws; (c) it is not subject to any sanctions, debarment, or export control restrictions that would prohibit it from entering into or performing this Agreement; and (d) it shall promptly notify the Company in writing upon becoming aware of any actual or potential breach of any representation, warranty, or covenant made in this Clause M or elsewhere in this Agreement.
M.3. Demand Partner represents and warrants that it is not a party to, and shall not enter into, any agreement or arrangement that would conflict with, restrict, or impair its ability to perform its obligations under this Agreement, or that would grant any third party any right that is inconsistent with the rights granted to the Company hereunder.
M.4. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE DEMAND SERVICES, OR ANY ADVERTISING INVENTORY MADE AVAILABLE THERETHROUGH, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT: (i) THE SERVICES OR ANY ADVERTISING INVENTORY WILL MEET DEMAND PARTNER’S PARTICULAR BUSINESS OBJECTIVES; (ii) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR IN ANY PARTICULAR VOLUME; (iii) ANY ADVERTISING INVENTORY WILL ACHIEVE ANY PARTICULAR PERFORMANCE OUTCOME; OR (iv) THE SERVICES WILL BE FREE FROM ERRORS, INTERRUPTIONS, SECURITY BREACHES, OR THIRD-PARTY INTERFERENCE.
N. Confidentiality
N.1. Demand Partner acknowledges that in the course of its access to and use of the Company’s services, it will have access to non-public, proprietary, and commercially sensitive information belonging to the Company and its Publishers, Partners, and Affiliates including without limitation: (a) the Company’s auction mechanics, bid floor logic, pricing algorithms, inventory allocation methodologies, and clearing price determination processes; (b) Publisher identities, Publisher URLs, Publisher inventory attributes, Publisher floor prices, and Publisher performance data accessed through or disclosed in bid requests; (c) the Company’s technology architecture, services, features, product roadmaps, and business strategies; (d) the financial terms of this Agreement and any applicable insertion orders; and (e) all Bid Stream Data as defined in Clause C.1 (collectively, “The COOL Company Confidential Information”). All of the foregoing shall be deemed the Company’s Confidential Information regardless of whether it is marked as such.
N.2. Demand Partner shall: (a) hold all of the Company’s Confidential Information in strict confidence; (b) not disclose any of the Company’s Confidential Information to any third party without the Company’s prior written consent, except to Demand Partner’s employees, officers, and professional advisors who have a strict need to know for purposes of this Agreement and who are bound by obligations of confidentiality at least as protective as those set forth herein; (c) use the Company’s Confidential Information solely for the purpose of fulfilling its obligations and exercising its limited rights under this Agreement, and for no other purpose whatsoever; and (d) promptly notify the Company upon becoming aware of any actual or suspected unauthorized disclosure or use of the Company’s Confidential Information, and cooperate fully with the Company in mitigating the impact of any such disclosure.
N.3. Without limiting the generality of Clause N.2 above, Demand Partner shall not use any of the Company’s Confidential Information to: (a) reverse engineer, replicate, or circumvent any aspect of the Company’s auction mechanics, pricing logic, or technology; (b) establish, solicit, or facilitate any direct commercial relationship with any Publisher whose identity or inventory has been disclosed through the Company’s services; (c) develop or improve any product or service that competes with the Company’s services; or (d) gain any commercial advantage outside the scope of the transactions expressly contemplated by this Agreement.
N.4. Demand Partner’s confidentiality obligations under this Clause N shall survive the expiration or termination of this Agreement for a period of three (3) years, except with respect to any trade secrets of the Company, for which such obligations shall survive indefinitely. Demand Partner acknowledges that any breach or threatened breach of this Clause N would cause immediate, irreparable harm to the Company for which monetary damages would be an inadequate remedy, and that the Company shall therefore be entitled to seek injunctive or other equitable relief without the requirement to post a bond or other security, in addition to all other rights and remedies available at law or in equity.
O. Notices
O.1. All formal legal notices required or permitted under this Agreement (including notices of breach, termination, suspension for cause, or any dispute) shall be in writing and shall be deemed duly given and effective: (a) upon transmission, if sent by email to the designated legal or operational contact of the receiving Party with no bounce-back or delivery failure notification received by the sending Party within twenty-four (24) hours; or (b) three (3) business days after deposit, if sent by registered or certified mail, postage prepaid, return receipt requested, to the address of the receiving Party set forth in its account registration or as otherwise designated in writing.
O.2. Notices to the Company shall be sent to its designated legal contact and billing contact as published on the Company’s platform or website from time to time. Notices to Demand Partner shall be sent to the email address and/or postal address provided by Demand Partner during onboarding or as subsequently updated by Demand Partner in writing. Demand Partner is responsible for ensuring that its designated contact information remains current; the Company shall have no liability for any failure of notice resulting from Demand Partner’s failure to maintain accurate contact information.
P. Assignment
P.1. Demand Partner shall not assign, novate, delegate, or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in whole or in part, whether voluntarily, involuntarily, by operation of law, change of control, or otherwise, without the Company’s prior written consent, which the Company may grant, withhold, or condition in its sole and absolute discretion. Any purported assignment, novation, delegation, or transfer by Demand Partner in violation of this Clause P shall be null and void and of no force or effect from the outset.
P.2. The Company may freely assign, novate, delegate, or otherwise transfer this Agreement. The Company shall provide Demand Partner with written notice of any such assignment within a commercially reasonable time following its effectiveness.
Q. Publicity
Q.1. Nothing in this Clause Q shall be construed to grant either Party any ownership interest in the other Party’s trademarks, and all goodwill arising from any permitted use of a Party’s name or marks under this Clause Q shall accrue solely to the benefit of the Party owning such name or marks.
R. Governing Law
R.1 This Agreement and any dispute, claim, or controversy arising out of or relating to this Agreement, its subject matter, its formation, or its interpretation (whether sounding in contract, tort, statute, or otherwise) shall be governed by and construed in accordance with the laws of the State of Florida, USA, without regard to its conflict of laws principles.
R.2 Subject to Clause R.3, the Parties irrevocably agree that the state and federal courts located in Florida shall have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement, and each Party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection to venue or any claim of inconvenient forum.
R.3 Notwithstanding Clause R.2, the Company may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Confidential Information, intellectual property, or services integrity.
R.4 To the fullest extent permitted by Applicable Laws, each Party (a) agrees that any dispute shall be resolved solely on an individual basis and waives any right to bring or participate in any class, collective, or representative proceeding against the other Party or, in the case of Demand Partner, against The COOL Company Indemnitees; and (b) irrevocably waives any right to trial by jury in any action arising out of or relating to this Agreement.
S. Miscellaneous
S.1. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable while most closely reflecting the Parties’ original intent, and if such modification is not possible, such provision shall be severed, with the remaining provisions continuing in full force and effect.
S.2. No failure or delay by the Company in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any further exercise. No waiver of any breach or default shall be deemed a waiver of any subsequent breach or default, whether similar or different. No waiver shall be effective unless in writing and signed by an authorized representative of the Company.
S.3. Except as expressly set forth in this Agreement, all rights and remedies available to the Company under this Agreement are cumulative and in addition to, not in lieu of, any other rights or remedies available at law or in equity.
S.4. Except as expressly provided with respect to the Company Indemnitees under Clause B, this Agreement confers no rights or remedies on any third party.
S.5. Neither Party shall be liable to the other for any delay or failure to perform any obligation (other than a payment obligation) under this Agreement to the extent that such delay or failure is caused by circumstances beyond the affected Party’s reasonable control, including without limitation acts of God, natural disasters, war, terrorism, labor disputes, government actions, or internet or telecommunications failures (“Force Majeure Event”). The affected Party shall notify the other Party promptly upon becoming aware of a Force Majeure Event and shall use commercially reasonable efforts to resume performance as soon as practicable. For the avoidance of doubt, a Force Majeure Event shall not excuse or delay any payment obligation of Demand Partner.
S.6. Electronic Acceptance; Counterparts. This Agreement may be accepted electronically. Any counterparts, physical or electronic, together constitute one instrument.
S.7. Acknowledgment of Bargaining Position. Demand Partner represents and warrants that it is a sophisticated commercial entity engaged in the business of purchasing digital advertising inventory; that it has had a full and fair opportunity to review this Agreement, including with legal counsel of its choosing; that it enters into this Agreement voluntarily; and that the allocation of risk, remedies, and limitations of liability set forth herein reflect a bargained-for exchange. Demand Partner waives any claim that this Agreement, or any provision of it, is unconscionable, an unenforceable adhesion contract, or otherwise procedurally or substantively unfair by virtue of its manner of presentation, drafting, or acceptance.