Amino Services Agreement

AMINO SERVICES AGREEMENT

Welcome to the Amino Network – a network of advertisers, publishers, and vendors that use the services of Amino Payments, Inc. (“Amino”) for the transparency, auditing, reconciliation, and payment of digital advertising This Amino Services Agreement (together with any Orders, the “Agreement”), is by and between Amino Payments, Inc. (“Amino”) and the legal entity identified in the signature block of an Order or that otherwise accepts an Order (“Member”), and is effective as of the date of acceptance of that Order (the “Effective Date”). Amino and Member are each referred to individually as a “party” and collectively as the “parties.” 

Amino provides certain supply-path optimization, transparency, and payment services, as further set forth in an order form that is signed or otherwise accepted by both parties (or, in the case of Amino, by an authorized reseller on Amino’s behalf), and references this Agreement (such order forms are “Orders,” and such services are collectively “Services”). Member desires to use the Services pursuant to the terms and conditions of this Agreement. 

This Agreement is a legal and binding agreement between Amino and the entity or person signs or otherwise accepts the applicable Order. This Agreement describes the terms and conditions that apply to Member’s use of the Services. If Member does not understand or agree with any of the terms of this Agreement, it should not access or use the Services. 

1. About the Services. Amino LensSM tracks a digital advertisement through the companies involved in buying, selling, delivering, or servicing that advertisement (“Supply Path”). Amino PaySM facilitates an advertising buyer paying all members of the Amino Network in the Supply Path for that advertising, according to each member’s Amino Lens ledger balance. Accordingly, the Services require sharing information about a given advertising opportunity with the members of the Amino Network in the Supply Path for that specific advertising opportunity. 

2. Integration. Amino will provide Member with the Services as set forth in this Agreement and Orders. Member will implement the Services in accordance with the documentation provided by Amino and any other procedures that are mutually-agreed in writing (e-mail sufficing) by the parties (collectively, “Documentation”). 

3. License. Amino grants Member a worldwide, limited, revocable, non-exclusive, non-transferable, non-assignable license to use the Services described in the Order for the duration of the applicable Order, in accordance with this Agreement and Documentation. 

4. Member Data. Member directs all third parties in the Supply Path for advertisements bought, sold, delivered, or serviced by Member, to provide Amino with the data relating to those advertisements. Member owns the data collected by the Services that specifically relates to Member’s activity regarding advertising bought, sold, delivered or serviced by Member (“Member Data”). Member grants Amino a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to access, use, process, copy, distribute, perform, and display Member Data, for only the following purposes: (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; or (c) as required by law. 

5. Third-Party Data. Member Data may contain, or allow Member to derive, information relating to a third party (e.g., the fees received by an SSP for a given advertisement) (“Third-Party Data”). Member agrees that it will use Third-Party Data only for purposes relating to fee transparency in the Supply Path (e.g., reporting costs, detecting fraud and inventory discrepancies), and it will not disclose Third-Party Data (except to third parties in the Supply Path to which that Third-Party Data relates and then subject to limitations that are substantially similar to those in this Agreement), unless Member independently obtains that Third-Party Data from a source other than the Services and has the written permission to use that Third-Party Data directly from its owner. 

6. Reports. Amino and/or the Services may provide Member with reports relating to digital advertisements bought, sold, delivered, or serviced by Member (“Reports”). Member owns the copies of the Reports provided to it, subject to Amino’s ownership in the Report format, layout, and presentation. Member may use Reports internally, and then only in furtherance of fee transparency in Member’s Supply Path (e.g., reporting costs, detecting fraud and inventory discrepancies). Member shall not disclose Reports to a third party, except may disclose limited excerpts from the Reports; provided, however that such excerpts are not presented in a misleading manner and cite “Amino Lens” as the source of the information. 

7. Aggregated Data. Like most other Web-based services, Amino may collect data about how the members of the Amino Network use the Services (collectively, “Aggregated Data”). Amino owns all right, title, and interest in Aggregated Data. Amino may use and disclose Aggregated Data for its business purposes including protecting, improving and promoting its products and services, provided that Amino does not disclose it in a manner that identifies Member as a source of Aggregated Data. 

8. Access. Member may give access to the Services to its employees and employees of its affiliates and clients (if Member is an agency), provided that Member requires each of those employees to use their own credentials for the Service and is responsible and liable for their access and use of the Services, and their compliance with this Agreement. Member will not otherwise give any third parties access to the Services, its components, or Member’s Service credentials. 

9. Amino’s Intellectual Property. Amino owns the Services, Documentation, related materials (such as report templates and layouts), and all intellectual property in them (collectively, “Amino Materials”). The Amino Materials are Amino’s trade secrets and Confidential Information. All rights in the Amino Materials that are not explicitly granted in this Agreement are reserved by Amino. Member will not itself, and will not allow any third party to, resell Amino Materials, or components or information derived from Amino Materials; nor copy, distribute, modify, decompile, disassemble or reverse-engineer the Amino Materials; combine or merge them with any other product, service or materials; use them to create any new product or service; or attempt to derive the source code or underlying ideas, inventions, algorithms, or protocols of the Amino Materials. 

10. Improving Amino’s Products. Member grants Amino a worldwide, perpetual, irrevocable and royalty-free, transferable, sublicenseable license to use, reproduce, modify, create derivative works of, publicly distribute and perform, display, make, sell, offer for sale, import, export and otherwise commercially exploit suggestions or other feedback Member may give relating to the Amino Materials. 

11. In-House Option. Member may operate an instance of the Services (“In-House Option”) in an Amazon Web Services (“AWS”) account owned and controlled by Member (“Account”), subject to the parties entering into an Order for such In-House Option. The following applies to the In-House Option and related Orders:

a. Amino will provide Member with a copy of the software that operates the Services (“Software”), by transferring such copy into the Account. The “Amino Materials” include such Software, and the “Services” include the services as made available by operating the Software in the Account. 

b. Member will configure and operate such Account and the Software contained therein in accordance with the documentation provided by Amino and any other procedures that are mutually-agreed in writing (e-mail sufficing) by the parties. The “Documentation” includes such documentation and procedures. Member may engage Amino to configure and operate such Account and the Software contained therein on Member’s behalf, by entering into an Order for such configuration and operation. Amino shall perform such configuration and operation as set forth in the applicable Order, subject to Member’s payment of the fees set forth in such Order. 

c. Amino grants Member a worldwide, limited, revocable, non-exclusive, non-transferable, non-assignable license to install a copy of the Software in the Account, and use such copy, for the duration of the applicable Order, in accordance with this Agreement and Documentation. Member will not use the Account for any purpose other than operating the Software to make available the Services. Member must provide Amino with credentials to the Account, which credentials Amino will use solely to support Member’s operation of the Software.

d. Member shall limit access to the Software and Account to: (i) Amino; and (ii) those of Member’s employees that are necessary to configure and maintain the Software contained in the Account. Member may give access to the In-House Option to its employees and employees of its affiliates and clients (if Member is an agency), provided that Member requires each of those employees to use their own credentials for the In-House Option and is responsible and liable for their access and use of the In-House Option, and their compliance with this Agreement. Member shall not otherwise give any third party access to the Software, Account, or In-House Option. Notwithstanding anything to the contrary herein, Amino is not liable for unauthorized access to or use of the Account or any information contained therein. 

12. Confidentiality. Each party (“Discloser”) has disclosed or may disclose to other party (“Recipient”) information that a reasonable person would understand to be confidential (because it was marked, identified, or otherwise) (“Confidential Information”). Recipient agrees to: (a) take reasonable precautions to protect Discloser’s Confidential Information from unauthorized use, access or disclosure (and no less than it uses to protect its own similar information); (b) use Discloser’s Confidential Information only as necessary to exercise or enforce its rights and perform its obligations in this Agreement; and (c) only disclose Discloser’s Confidential Information to its employees and service providers who have a need to know it for Recipient to exercise its rights and perform its obligations under this Agreement. This section does not apply to any information that: (1) was already lawfully known to Recipient at the time of disclosure by Discloser; (2) is disclosed to Recipient by a third party who had the right to make that disclosure without any confidentiality restrictions; (3) is at the time of receipt, or through no fault of Recipient has become, generally available to the public; or (4) is independently developed by Recipient without access to, or use of, Discloser’s Confidential Information. In addition, Recipient may disclose Discloser’s Confidential Information to the extent that that disclosure is: approved in writing by Discloser, necessary for Recipient to enforce its rights under this Agreement, or required by law or court order; provided that Recipient notifies Discloser of that required disclosure promptly and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful contest of or limitation on the scope of that required disclosure. Recipient will destroy all Discloser’s Confidential Information in its control promptly upon receipt of written request from Discloser, except to the extent contained within archives that were created in the ordinary course of Recipient’s business (which remain subject to this section). Member is responsible for its Services account and all activity in it. Except to the extent caused by Amino’s material breach of this Agreement, Amino is not responsible for unauthorized access to or use of Member’s Services account (e.g., Member does not deactivate Services credentials for a former employee). If Member becomes aware of an error in the Services, then it will promptly report the error to Amino and treat the error as Amino’s Confidential Information. 

13. Term and Termination. This Agreement begins on the Effective Date and, unless terminated earlier as permitted in this section or an Order, continues until the first anniversary of the Effective Date. A party may terminate this Agreement or an Order (as applicable), on written notice to the other party if the other party materially breaches the Agreement or Order (as applicable) and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of the breach. Termination of this Agreement terminates all outstanding Orders. If this Agreement expires while an Order is in effect, its terms and conditions will continue to govern that Order until that Order is terminated or expired. Amino may suspend Member’s use of the Services immediately on notice if Amino reasonably believes that the Services are being used by Member in violation of applicable law or otherwise in a manner that will subject Amino or other Amino Network members to imminent and material harm. Upon termination or expiration of the applicable Order: (a) all licenses granted herein automatically end; and (b) Member immediately will stop using the Amino Materials and return or destroy all copies in its control. This sentence, and Sections 4, 5, 6, 7, 9, 10, 12 (for a period of five (5) years), 14 and 15 will survive the termination or expiration of this Agreement. 

14. Disclaimers; Limitation of Liability; Indemnification. 

a. MEMBER AGREES THAT THE AMINO MATERIALS, THEIR COMPONENTS, AND ACCESS TO THEM ARE PROVIDED “AS IS” AND “WITH ALL DEFECTS,” AND AMINO DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED) CONCERNING THE SERVICES, THE AMINO MATERIALS, AND THEIR COMPONENTS. 

b. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, OR ANY DAMAGES FOR LOST SALES, PROFITS, BUSINESS OR DATA, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF OR HAS REASON TO KNOW ABOUT THE POSSIBILITY OF ANY SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EACH PARTY’S TOTAL LIABILITY, IN THE AGGREGATE, FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT OR THE SERVICES, WILL NOT EXCEED THE GREATER OF THE AMOUNT PAID BY MEMBER TO AMINO FOR THE SERVICES IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM OR $1,000. THIS SECTION 14(B) DOES NOT APPLY TO DAMAGES ARISING FROM A PARTY’S INFRINGEMENT OF THE OTHER’S INTELLECTUAL PROPERTY, MEMBER’S PAYMENT OBLIGATIONS (AS SET FORTH IN THE APPLICABLE ORDER), A PARTY’S BREACH OF SECTION 12, OR A PARTY’S OBLIGATIONS IN SECTIONS 14(C) AND (D). 

c. Amino will defend Member from all third-party claims alleging that Member’s use of the Services as permitted in the Agreement infringes or misappropriates a third party’s intellectual property rights. In addition, Amino will indemnify and hold harmless Member from and against all reasonable attorney’s fees incurred and damages and other costs finally awarded against Member by a court of competent jurisdiction in connection with or as a result of, and for amounts paid by Member under a settlement Amino approves of in connection with, those claims. Amino has no liability for those claims to the extent based on (i) use of the Services by Member in combination with other business processes, products, services, or components which were not furnished to Member by Amino; (ii) modification or alteration of the Services by Member or its agents; or (iii) use of the Services in a manner other than that for which they were designed or in breach of this Agreement. Member must provide Amino with prompt written notice of those claims and allow Amino to assume the exclusive defense and control and cooperate with any reasonable requests assisting Amino’s defense and settlement of those claims. This section states Amino’s sole liability with respect to, and Member’s exclusive remedy against Amino for, all of those claims. Amino’s liability under this section will not exceed $1,000,000.00 in the aggregate. 

d. Member will defend Amino from all third-party claims that arise out of or relate to Member’s use of the Services. In addition, Member will indemnify and hold harmless Amino from and against all liabilities, losses, fines, costs, expenses (including reasonable attorneys’ fees), damages, awards, settlements, and penalties relating to those claims. Amino must provide Member with prompt written notice of any those claims and allow Member to assume the exclusive defense and control and cooperate with any reasonable requests assisting Member’s defense and settlement of those claims. 

15. General. This Agreement is the complete and entire agreement between the parties and supersedes all prior and contemporaneous agreements and communications with respect to its subject matter. Any provision of this Agreement that is held to be unenforceable will in no way affect any other provision. No waiver of any provision of this Agreement or any right or obligation of a party will be effective unless there is a signed writing evidencing the waiver. The failure of a party to enforce a right will not constitute a waiver of the right. This Agreement may not be modified except in a writing executed by both parties. This Agreement and all disputes relating to it will be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to its conflicts of laws rules. Exclusive jurisdiction and venue for the adjudication of any disputes will be in the state and federal courts (including the appellate courts) for Philadelphia, Pennsylvania, and the parties consent to the jurisdiction and venue of those courts. This Agreement is not assignable except to an affiliate or to a successor to substantially all of a party’s assets or business. All notices or reports will be in writing and will be delivered by personal delivery, overnight mail, or by certified or registered mail return receipt requested, and will be deemed given upon personal delivery, or five days after deposit in the mail. Notices will be sent to the respective addresses set forth on the first page or signature block of this agreement (as applicable). Member is responsible for paying all taxes, levies, duties, or similar governmental assessments (collectively “Taxes”) associated with the Services, except for those Taxes based on Amino’s income. Should any payment for the Services be subject to withholding tax, Member will reimburse Amino for such tax. In the event of a conflict between the terms of an Order and this Agreement, the terms of the Order will control with respect to its subject matter. References to “Amino” and “Member” include Amino’s and Member’s affiliates, and their respective officers, directors, employees, agents, and service providers. All companies in Member’s Supply Path are intended third-party beneficiaries of this Agreement.