Updated: August 25, 2021
In the event Customer is an agency entering into this Agreement on behalf of itself and its advertiser customer(s), and unless as otherwise expressly stated in this Agreement, all references to “Customer” in these Terms and Conditions shall mean the agency that has registered for an account with MNTN to receive the Services and agency’s advertiser customer(s) whose marketing campaigns are performed by using MNTN’s Services.
- Services and License
- Services. MNTN offers the Media Services through its proprietary digital marketing platform technology (the “Platform”). The Platform features: (a) an audience management system; (b) a campaign management system; (c) a creative ad builder; and (d) an analytics system. MNTN performs the Creative Services outside of the Platform. MNTN will perform the Services and provide any deliverables (“Deliverables”) described in the applicable IOs, Order Forms, and/or SOWs that the parties may enter into from time to time by mutual written agreement and which are duly executed by a representative of both parties. Customer will be given access to the Platform once Customer indicates Customer’s acceptance of this Agreement to MNTN in Customer’s account. The Platform is accessible via https://ui.mountain.com/login. MNTN will use commercially reasonable efforts to provide Customer with Platform access credentials within five (5) business days of execution of the Agreement by both parties. Unless otherwise expressly agreed by both parties in writing, all campaign setup and launches will be handled by the Customer within the MNTN Platform.
- Third Party Creators. Customer acknowledges and agrees that the Creative Services described under a SOW may be subcontracted and assigned to third party business entities and persons (“Third Party Creators”) to provide the Deliverables.
- Insertion Order, Order Form or SOW. If Customer and MNTN duly execute an IO, Order Form, or SOW which expressly references these Terms and Conditions, then these Terms and Conditions will apply to the applicable IO, Order Form, and/or SOW. Except as otherwise expressly set forth in the main body of these Terms and Conditions or in an IO, Order Form, or SOW, in the event of a conflict, ambiguity or inconsistency between the provisions in the body of these Terms and Conditions and any IO, Order Form, or SOW, the provisions in the main body of these Terms and Conditions shall prevail.
- License. MNTN hereby grants Customer a limited, revocable, non-exclusive, non-transferable, and non-sub-licensable license to access the portions of the Platform ordered by Customer and if applicable, the Deliverables in the applicable IOs, Order Forms, and/or SOWs, solely for the purpose of receiving the Services ordered by Customer and using the Platform in accordance with this Agreement. All rights not expressly granted herein to Customer are reserved to MNTN, its affiliates, its subsidiaries, and its licensors.
- Responsibilities and Restrictions
- Restrictions on Use of Media. Customer shall not, and shall not permit any third party to: (a) distribute any Deliverables containing images or videos, or any images or videos that are created by Customer or MNTN on the Platform (collectively, the “Media”), for public display and/or exploitation on the internet, on a stand-alone basis, outside of the Platform; (b) manipulate or otherwise make any use of the Media separate and apart from the Platform; or (c) distribute the Media in any manner except as expressly provided in this Agreement. Upon notice from MNTN, Customer shall immediately (i) remove all Media identified in such notice from its advertisements and from all locations where the identified Media was distributed by Customer outside the Platform, and (ii) delete any copies of the Media used outside the Platform. Customer shall provide prompt written notice to MNTN confirming its compliance with the foregoing clauses (i) and (ii).
- Acceptable Use. Customer shall not use any software (“Software”) provided by or on behalf of MNTN to Customer in its performance of the Services, the Platform, Deliverables, or Media: (a) in violation of this Agreement; (b) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (c) to violate any law, statute, ordinance or regulation, unfair competition, anti-discrimination and/or false advertising; or (d) to engage in any illegal, offensive, indecent, inappropriate or objectionable conduct or content. Customer may access the Platform only through the interfaces and protocols provided or authorized by MNTN. Customer shall not, and will not assist or permit any third party on its behalf to, access the Platform, Services, Deliverables, Media, or Software through unauthorized means, such as unlicensed software clients.
- Customer Content. “Customer Content” means all data, information, and materials, collected, stored or received by, or provided or otherwise made accessible to MNTN, by or on behalf of Customer, for the purpose of receiving or using the Platform, Services or Deliverables, including but not limited to: (a) cookie IDs, IP addresses, or other IDs from visitors of Customer’s website(s), (b) email addresses sent to MNTN by Customer, (c) information and materials regarding Customer’s products and services, ads, and (d) Customer’s marketing and promotional text, content, videos, images and fonts. Customer shall: (i) update the Customer Content as required by MNTN to access and use the Platform, Services, Media or Deliverables; (ii) be solely responsible for all Customer Content; (iii) ensure all Customer Content complies at all times with all applicable laws, rules, and regulations applicable to its use with the Platform, Services, Deliverables, Media and Software; and (iv) obtain all waivers, consents and other rights necessary for MNTN to use the Customer Content to provide the Platform, Services, Deliverables and Software to Customer in compliance with all applicable laws, rules, and regulations, including without limitation, applicable Privacy Laws (defined in section 2.5). Customer grants to MNTN and its affiliates, contractors, agents and service providers a limited, revocable, non-exclusive license to reproduce, use and distribute the Customer Content solely as necessary to provide the Services, Platform, Deliverables, Media and Software to Customer.
- Prohibited Customer Content. Customer shall not provide or make available to MNTN, directly or indirectly, any Customer Content to MNTN, whether through the Platform or otherwise, that: (a) is used by Customer to make decisions related to an individual’s eligibility for employment, health care, credit or insurance; (b) is used by Customer to make decisions solely by automatic means where the decision has a significant effect on the individual or person in any way that does or may discriminate against any person or promote bigotry, racism or harm; (c) contains sensitive or special data regulated by applicable Privacy Laws (defined in section 2.5) about any consumers including end users; or (d) is collected from sites, platforms, or channels directed to children under the age of sixteen (16) or from children whose age Customer knows or should know to be under the age of sixteen (16).
- Data Privacy Laws. Customer shall ensure that Customer’s collection, storage, use, and transfer of all Customer Content complies at all times with all applicable data privacy, protection and security laws, including without limitation: (a) the California Consumer Privacy Act of 2018 (“CCPA”) as amended; (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) as amended; (c) any corresponding or equivalent national laws to the GDPR, including the UK Data Protection Act 2018 and the UK GDPR; (d) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; (e) the Children’s Online Privacy Protection Act of 1998; (f) Directive 2002/58/EC (“ePrivacy Directive”); (g) any guidance, guidelines, approved codes of conduct, codes of practice, or approved certification mechanisms issued by any relevant regulator; (h) any laws or regulations implementing, or any judicial, regulatory or administrative interpretation of, any of the above; and (i) any other applicable laws, rules, and regulations, including, without limitation, industry self-regulations such as the Network Advertising Initiative (NAI) Code of Conduct and guidance, Self-Regulatory Principles and guidance of the Digital Advertising Alliance (DAA), and the European Principles and guidance of the European Interactive Digital Advertising Alliance (EDAA) (subsections (a) to (i) collectively referred to as “Privacy Laws”). Customer represents and warrants that all Customer Content provided to MNTN pursuant to this Agreement was collected in compliance with applicable Privacy Laws and that MNTN’s use, storage or disclosure of Customer Content in accordance with this Agreement shall be in compliance with such Privacy Laws.
- MNTN as Service Provider. To the extent that Customer Content contains “personal information” within the meaning of the Privacy Laws, MNTN will only retain, use, and disclose such Customer Content for the purpose of performing the Services specified in this Agreement, or as otherwise permitted by the Privacy Laws, and Customer shall provide notice to individuals regarding its sharing of such personal information as required by the Privacy Laws.
- Platform Account. To access and use the Platform you will be provided an account by MNTN (“Account”). Any passwords used for an Account on the Platform are for your use, and your authorized representative(s) only.
- Unauthorized Access to Account. Account access is provided on a password-protected basis. Customer is solely responsible for keeping Customer’s Account password secure and confidential and for all use of Customer’s password and Account, including any unauthorized use. If Customer becomes aware of any unauthorized use of Customer’s Account, Customer must notify MNTN immediately in writing. MNTN is not liable for any loss or damage arising from the unauthorized access to or use of Customer’s Account. Upon termination of this Agreement, MNTN may disable and/or delete Customer’s Account with or without notice to Customer.
- Ad Serving, Data and Customer Metrics.
- Customer Metrics. MNTN monitors and delivers all advertisements through the Platform. MNTN measures the number of impressions, conversions, and over 400 other metrics (the “Customer Metrics”) through the Platform. Customer acknowledge and agrees that the MNTN definitions of the Customer Metrics (and associated measurements) will control and are final, and will prevail over any other definitions or measurements, including without limitation, those measurements that Customer may track internally or through Customer’s third-party tracking system. Customer acknowledges that the Customer Metrics will be the sole source of data utilized for purposes of performance reviews and discussions between MNTN and Customer. The Customer has access to the Customer Metrics generated by MNTN on a continual basis through the Platform or MNTN’s API. The Customer Metrics within the Platform are updated no less than every few hours on a daily basis.
- Cross-Device Verified Visits Attribution Model. Customer agrees that the Customer Metrics used for performance purposes will exclusively use MNTN’s cross-device verified visits attribution model (“Verified Visits”) across all MNTN channels during the term of these Terms and Conditions. MNTN’s Verified Visits, as solely determined by MNTN’s reporting, is final and conclusive for all performance purposes. The Verified Visits attribution model reports on verifiable actions with your advertisements. Conversions, transactions, and revenue is reported from these Verified Visits. Interactions are considered a Verified Visit if (a) the impression served was deemed viewable by MNTN; (b) the visit occurred within a timeframe defined by the Customer (under the “my account” section of the Platform), and (c) MNTN verifies the user as a human user.
- Machine Learning/Data. For any creatives (“Creatives”) provided by MNTN in the Deliverables, MNTN employs machine learning applications (“Software Applications”) including deep learning and natural language processing to identify attributes within the Creatives, including but not limited to the presence of people, food, beverages, automobiles, music and text and correlates those attributes with Customer’s video performance data including, but not limited to, likes, shares, comments, reposts, audiences and engagement. Customer hereby grants to MNTN non-exclusive, transferable, sub-licensable, royalty-free access, during the Term, to use, copy, store, archive, process, reproduce, perform, display, modify, analyze, compile, distribute and transmit (“Use”) Customer Data (defined below), solely for the purposes of machine learning. MNTN shall not have or obtain any rights in or to any modifications made through Use of the Customer Data, other than through incorporation of the anonymized set of Customer Data provided during the Term into the Software Applications for purposes of training the Software Applications’ machine learning algorithms, where anonymized means that no individual element of the Customer Data, alone or in combination with any other data element, can be used to identify Customer or any individual. Without limiting the foregoing, Customer agrees MNTN is permitted to share, disclose, or otherwise make available the anonymized set of Customer Data, described in this Section 3.3, with third parties. “Customer Data” means all data, information, video, audio, and other materials submitted or made available by Customer to MNTN in connection with the Creatives, including but not limited to, any user-generated content provided by Customer to MNTN, directly or indirectly, during the Term.
- Except as expressly set forth herein, MNTN (and its licensors, where applicable) will retain all intellectual property rights relating to its Software Applications, including but not limited to, any and all improvements, modifications or derivatives thereof or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer, (excluding Customer Data), or any third party relating to its Software Applications, which are hereby assigned to MNTN. For clarity, the foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, except as otherwise set forth in this Agreement. No jointly owned intellectual property is created under or in connection with this Agreement. Customer will not copy, distribute, reproduce, or use any of the foregoing except as permitted under this Agreement.
- Term and Termination
- Termination. MNTN may terminate this Agreement or any IO, Order Form, SOW, or other document which is part of this Agreement, at any time, with or without cause, upon written notice to Customer(email sufficing). If Customer and MNTN have each duly executed an IO, Order Form, or SOW, Customer may terminate this Agreement or any IO, Order Form, or SOW in the event MNTN materially breaches these Terms and Conditions, provided that Customer gives MNTN written notice of the material breach and a thirty (30) day opportunity to cure the material breach. If MNTN does not cure the material breach within thirty (30) days after written notice is provided to MNTN, this Agreement will terminate at the end of the thirty (30) day cure period. In circumstances where Customer has not entered into an IO, Order Form, or SOW, or the IO, Order Form, or SOW does not explicitly state a term, then Customer may immediately suspend or terminate the Services through Customer’s Account on the Platform.
- Effect of Termination. Upon termination or expiration of this Agreement or upon Customer’s suspension or termination of the Services through Customer’s Account on the Platform: (a) the license granted under Section 1.4 shall terminate; (b) Customer shall cease using the Platform, Services, Deliverables, Media, and Software and, (c) upon request by MNTN, Customer shall (i) destroy all copies of all documentation, Media, and/or other content provided by MNTN hereunder, or (ii) return all copies of all documentation, Media, and/or other content provided by MNTN hereunder to the address designated by MNTN; (d) MNTN shall have no further obligation to provide the Platform, Services, Deliverables, Media, or Software; (e) Customer will pay any unpaid fees payable to MNTN under this Agreement; and (f) each party shall destroy all copies of Confidential Information of the other party as defined in Section 8.1.
- Access to Platform, Services, Deliverables, Media, or Software. Notwithstanding any other provision in this Agreement, MNTN shall be entitled, without liability to Customer, to immediately suspend, terminate, or limit Customer’s access to the Platform, Services, Deliverables, Media or Software, at any time, in its sole and absolute discretion, with or without cause, MNTN will use commercially reasonable efforts to provide written notice to Customer (email sufficing) prior to any suspension, termination, or limitation on Customer’s access to the Platform, Services, Deliverables, Media, or Software. Without limiting the foregoing, MNTN may immediately suspend, terminate, or limit Customer’s access to, the Platform, Services, Deliverables, Media, and/or Software without notice in the event that: (a) MNTN determines that the Platform, Services, Deliverables, Media, and/or Software are being used in violation of any applicable law, rule, or regulation; (b) MNTN determines Customer has breached any term, condition, covenant, representation or warranty under this Agreement, or in an IO or Order Form; (c) MNTN determines that the Platform, Services, Deliverables, Media, or Software are being used in an unauthorized or fraudulent manner; (d) MNTN determines that Customer’s use of the Platform, Services, Deliverables, Media, or Software adversely affects MNTN’s equipment or service to others; (e) MNTN receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or otherwise violate any law or the rights of a thirty party, (f) MNTN is prohibited by an order of a court or other governmental agency from providing the Platform, Services, Deliverables, Media, or Software; or (g) there is any other event which MNTN determines, in its sole discretion: (i) may create a risk to the Platform, Services, Deliverables, Media, or Software, (ii) harms or is likely to harm MNTN’s business reputation, or (iii) is likely to adversely affect any other customers of MNTN if the Platform, Services, Deliverables, Media, or Software were not suspended. Without limiting the generality of Section 12, MNTN shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Platform, Services, Deliverables, Media, or Software in accordance with this Agreement.
- Fees and Payment
- Fees and Payment.If Customer and MNTN have duly executed an IO, Order Form, or SOW, Customer shall pay all fees set out in the applicable IO, Order Form, or SOW. If Customer and MNTN have not duly executed an IO, Order Form, or SOW, or the IO, Order Form, or SOW does not explicitly state the payment terms, Customer will be responsible for paying all fees incurred by Customer, or any third party acting on Customer’s behalf, in Customer’s account on the Platform. Invoices will be sent by MNTN to Customer within fifteen (15) days after the end of each month and are payable on net 30 terms. Customer shall pay all amounts due to MNTN under this Agreement by credit card, debit card or such other payment method authorized by MNTN in writing.
If Customer chooses to provide MNTN with a payment source in Customer’s Platform account, Customer agrees that MNTN may store and continue billing Customer’s payment method (e.g. credit card) to avoid interruption of the Services, and in MNTN’s discretion, MNTN may charge Customer’s payment method when Customer’s spend reaches a threshold (as determined by MNTN and only for advertisements that have been served against the budget entered into the Platform) or by the fifteenth (15th) of every month for the previous month. Customers who request to be invoiced must pay within thirty (30) days after the date of the applicable invoice. Invoices may be transmitted in either hard copy via mail or electronically via email, and payment may be made by electronic funds transfer, credit card or paper check. Failure to pay any monthly invoice within thirty (30) days of the date provided on the invoice may result, in MNTN’s sole discretion, (i) the immediate suspension of Customer’s access to the Platform, Services, Deliverables, Software, and/or Media being provided under this Agreement, and/or (ii) termination of this Agreement with forty-eight (48) hours prior written notice (email sufficing). For any invoice that is not paid in full within thirty (30) days of the invoice date, MNTN reserves the right to charge interest of two percent (2%) per month (or the maximum allowed by law, whichever is lower) and MNTN, in its sole discretion, may contact the Customer’s advertiser client to seek payment without waiving any rights to collect payment from Customer. In the event of an untimely payment to MNTN, MNTN reserves the right to require Customer to pay up to the next six (6) months of future invoices in advance (“Advanced Payments”), and MNTN may require the payment of Advanced Payments prior to any campaigns being permitted to resume or commence on the Platform.
- Sequential Liability. If Customer is an agency entering into this Agreement on behalf of itself and the advertiser for which Customer is the agent under this Agreement (“Advertiser”), then MNTN agrees to sequential liability and will hold Customer liable for payments solely to the extent proceeds have cleared from Customer’s applicable Advertiser. For sums not cleared to Customer within thirty (30) days after the date of MNTN’s invoice, MNTN agrees to hold the applicable Advertiser solely liable and reserves the right to contact the applicable Advertiser directly. Customer agrees to use best efforts to collect and clear payment from the applicable Advertiser on a timely basis. Upon MNTN’s request, Customer shall make available to MNTN written confirmation of the relationship between Customer and Customer’s Advertiser(s).
- Taxes. The fees described in Sections 5.1 and in any applicable IO, Order Form, or SOW are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on MNTN’s net income) unless Customer has provided MNTN with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to MNTN on account thereof.
- Intellectual Property Rights
- MNTN Intellectual Property. MNTN (and its licensors, where applicable) retains ownership of the Platform, Services, Media, Deliverables, and Software, and any modifications, improvements or derivatives of the foregoing, and all intellectual property rights relating to any of the foregoing. Customer grants to MNTN a perpetual, non-exclusive license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform, Services, Deliverables, Media, or the Software.
- Customer Intellectual Property. Customer has and retains ownership of the Customer Content and any intellectual property rights with respect to the Customer Content.
- Non-Solicitation of Third Party Creators. For the duration of the term of this Agreement and ending one (1) year following the termination or expiration of this Agreement, Customer shall not, whether for its own account or for the account of any other person or entity, intentionally interfere with the business relationship MNTN has with its Third Party Creators or its Affiliates, or endeavor to entice away from MNTN or its Affiliates, any entity or person who during the Term of the Agreement is, or during the preceding one-year period, was a Third Party Creator for MNTN.
- Non-Solicitation of MNTN Employees. For the duration of the term of this Agreement and ending one (1) year following the termination or expiration of this Agreement, neither Customer nor any of its parents, subsidiaries, or affiliates (each, a “Restricted Person”) shall directly or indirectly, for itself or on behalf of another person or entity: solicit for employment or otherwise induce, influence, or encourage to terminate employment with MNTN, or employ, or engage as an independent contractor, any current or former employee of Customer, with whom the Restricted Person had contact or who became known to the Restricted Person in connection with this Agreement (each, a “Covered Employee”), except pursuant to a general solicitation through the media, or by a search firm, in either case, that is not directed specifically to any current or former employees of MNTN, unless such solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this Section 8.2(a).
- Confidential Information. “Confidential Information” of a party means all confidential and proprietary data and information of the disclosing party that is submitted to or learned by the receiving party in connection with this Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Without limiting the foregoing, the following shall be deemed Confidential Information of MNTN: the Platform, Services, Deliverables, Media, Software and the terms and conditions of this Agreement. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, officers, directors, consultants, contractors, shareholders, service providers, sublicensees, subcontracts, attorneys, accountants, and agents who need to know such Confidential Information for the purposes of this Agreement. Each party will advise its employees, consultants, service providers, and agents of their responsibilities under this Agreement and be responsible for any breach of this Section 9 by its employees, consultants, service providers, or agents. For purposes of clarity and without limiting the foregoing, MNTN shall have the right to disclose Customer’s Confidential Information to Third Party Creators and other third party strategic partners who are providing Creative Services in connection with this Agreement, provided that the Creators and other third party strategic partners are bound by confidentiality obligations at least as restrictive as the obligations in this Section 9.1. Confidential Information shall not include information that is: (a) or becomes publicly available (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; or (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality. The confidentiality obligations of each party in this Section 9 shall survive for one (1) year after termination of this Agreement, and to the extent that the Confidential Information disclosed by the disclosing party under this Agreement contains trade secret information, such Confidential Information will be subject to the protection of this Agreement for the longest period of time permitted under any applicable law.
- Exclusions/Remedies. The obligations in this Section 9 do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order, if legally permissible, so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section 9 or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 9, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
- Representations and Warranties
- MNTN Representations and Warranties. MNTN represents and warrants to Customer that MNTN has the necessary authority to enter into this Agreement and carry out its obligations hereunder.
- Customer Representations and Warranties. Customer represents, warrants and covenants to MNTN that: (1) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (2) Customer is the owner of or is licensed to use and transfer the Customer Content to the Platform or otherwise provide such Customer Content to MNTN and all subject matter contained therein; (3) Customer will at all times comply with all terms, conditions, representations, warranties, and covenants made under this Agreement; (4) Customer has obtained all consents and provided all necessary opt-outs to allow MNTN to process the Customer Content as required by applicable Privacy Laws; (5) all personally identifiable health information, if any such information is provided or made available to MNTN, is collected, compiled, inferred, used, and/or disclosed after providing all notice, obtaining all consents, and complying with all consumer choices required by applicable Privacy Laws; and (6) Customer will at all times comply with all applicable laws, rules, and regulations.
- Disclaimer. THE PLATFORM, SERVICES, DELIVERABLES, MEDIA, AND SOFTWARE PROVIDED BY MNTN TO CUSTOMER AND THE RESULTS THEREOF ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND THE WARRANTIES STATED IN SECTION 10.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY MNTN. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES, DELIVERABLES, MEDIA OR SOFTWARE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND MNTN DOES NOT WARRANT THAT THE PLATFORM, SERVICES, DELIVERABLES, MEDIA OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE.
- MNTN Indemnification. Subject to the limitations of liability in Section 12, MNTN will defend Customer and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “Customer Indemnitees”) from and against any claim made or brought against any Customer Indemnitee by a third party alleging that the Platform, Services, Deliverables or Software, as provided by MNTN to Customer hereunder, infringe any patent, copyright, trademark or other proprietary right, or misappropriate any trade secret of any third party and MNTN shall pay the damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by MNTN in a settlement with respect to such claims. MNTN shall have no obligation to defend or pay damages to Customer for claims or losses arising from Media, Customer Content, Customer’s breach of this Agreement, the combination of the Platform, Services, Deliverables or Software with other services, products or content, any modifications to the Platform, Services, Deliverables or Software made by any entity other than MNTN, or Customer’s use of the Platform, Services or Deliverables or any portion thereof after MNTN has suspended such use or terminated this Agreement or such portion in accordance with this Agreement. If the Platform, Services, Deliverables or Software become or may become the subject of a claim of infringement, MNTN may: (a) obtain the right for Customer to continue use of the Platform, Services, Deliverables or Software; (b) replace or provide a work-around in order to allow for Customer’s continued use of the Platform, Services, Deliverables or Software; or (c) if MNTN cannot effect (a) or(b) using commercially reasonable efforts, terminate this Agreement, in whole, or in part with respect to the infringing Platform, Service, Deliverable or Software. The provisions set forth in this Section 11.1shall be MNTN’s sole obligation, and Customer’s sole remedy, for any violation of third party rights by the Platform, Services, Deliverables or Software.
- Customer Indemnification. Customer will defend MNTN and its parent, subsidiaries and affiliates and their respective directors, employees and agents (collectively, the “MNTN Indemnitees”) from and against any claim made or brought against any MNTN Indemnitee arising from or relating to any third party claims or actions based on: (a) Customer’s gross negligence or willful misconduct in performing its obligations under this Agreement; (b) Customer’s breach of any term, condition, covenant, representation or warranty under this Agreement, including but not limited to, any claims arising out of or related to consent, collection, processing, transfers and/or use of Customer Content; (c) use of the Platform, Services, Deliverables, Media, or Software in a manner not contemplated hereunder, including any use that violates any applicable law or regulation or any right of a third party; (d) Customer’s use and placement of advertisements, Media, or Deliverables other than on MNTN’s Platform; or (e) any allegation that the Customer Content violates any applicable laws, including but not limited to Privacy Laws, or (f) any allegation that the Customer Content infringes any patent, copyright, trademark or other proprietary right, or misappropriates any trade secret of any third party. Customer shall pay any damages (including reasonable attorney’s fees) finally awarded by a court or agreed to by Customer in a settlement with respect to such claims.
- Notification. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights, imposes any liability upon the indemnified party, or does not provide a complete release of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.
- Limitation of Liability
IN NO EVENT WILL MNTN BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF MNTN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF MNTN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS PAID BY CUSTOMER TO MNTN IN THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT MNTN HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Dispute Resolution; Arbitration Agreement; No Class Action
- Dispute Resolution. If a dispute or claim arises under this Agreement (a “Dispute”) that the project managers or primary business contacts of each party are unable to resolve, a party will notify the other party of the Dispute in writing (which may be via email) with as much detail as possible. Customer and a MNTN senior business representative with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice. If the parties’ senior business representatives are unable to resolve the Dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either party may pursue arbitration as set forth in Section 13.2 below.
- Arbitration Agreement; No Class Action. ANY DISPUTE, CLAIM OR CONTROVERSY (COLLECTIVELY, A “DISPUTE”) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY PORTION THEREOF, OR THE PLATFORM, SERVICES, DELIVERABLES, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING ANY DISPUTE INVOLVING CONDUCT ALLEGED TO BE IN VIOLATION OF LOCAL, STATE OR FEDERAL STATUTORY OR COMMON LAW OR INDUSTRY CUSTOMS OR STANDARDS, AND THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. By agreeing to arbitration, both Customer and MNTN understand that they are knowingly, voluntarily, and intentionally waiving their right to maintain other available resolution processes, such as a court action or administrative proceedings.
Customer and MNTN each agree to a confidential private arbitration before a neutral single arbitrator from JAMS, whose decision will be final and binding. All arbitration proceedings shall take place exclusively in Los Angeles, California. The arbitration proceedings shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures, which are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. The arbitrator is bound by the terms of this Agreement. The arbitration will be conducted in the English language. For any Dispute where the potential award is reasonably likely to be $10,000 or less, either Customer or MNTN may elect to have the dispute resolved through non-appearance-based arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Customer and MNTN shall treat all arbitration proceedings–including any hearing, decision, award and opinion in support thereof–as confidential, and agree that the arbitrator shall issue such orders as is reasonably necessary to maintain such confidentiality.
If Customer intends to seek arbitration, Customer must first send written notice to MNTN of its intent to arbitrate (“Notice”). The Notice must: (a) describe the nature and basis of the Dispute; (b) set forth the specific relief sought, including the monetary amount; and (c) set forth Customer’s name, address and contact information. If MNTN intends to seek arbitration against Customer, MNTN will send any Notice of Dispute to Customer at the contact information on file, and set forth the nature and basis of the Dispute, and relief sought, including the monetary amount.
To help resolve any Disputes promptly and directly, Customer and MNTN each agree to commence any Dispute resolution within one (1) year after a claim arises; otherwise, the Dispute is waived.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AND MNTN EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Customer and MNTN understand that by agreeing to this class action waiver, each may only bring a Dispute against one another in an individual capacity, not as a representative or member of a purported class, or as a Private Attorney General. Customer and MNTN each agree that any Disputes shall not be consolidated with any Dispute of any other party. Customer and MNTN each agree that the arbitrator may not consolidate their claims with any other party, and may not otherwise preside over any form of a representative or class proceeding.
If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, Customer and MNTN each agree that all Disputes arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Los Angeles County, Los Angeles, California, and Customer and MNTN each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such Disputes.
- Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, shall be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Platform. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- General Provisions
- Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
- Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.
- Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without MNTN’s prior written consent (not to be unreasonably withheld). MNTN may freely transfer and assign this Agreement or any of its rights and obligations hereunder. Any assignment in contravention of this provision will be null and void. The parties’ rights and obligations under this Agreement will be binding on and will inure to the benefit of all permitted assignees and successors in interest.
- Notices. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including without limitation, by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address: If to Customer, to the name and address contained in the IO, Order Form, or SOW, or to the email address provided upon registration for the MNTN Platform. If to MNTN:
Attn: Christopher Innes, Chief Operating Officer
201 W. 5th Street
Austin, TX 78701
Such addresses may be changed by notice given by one party to the other pursuant to this Section.
- Publicity and Marketing Materials. Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by MNTN. Notwithstanding anything to the contrary contained herein or any other previous agreements entered into by the parties, Customer agrees MNTN is permitted to disclose on its website or otherwise that Customer is one of its customers and Customer agrees to allow MNTN a limited right to use Customer’s logo and name on MNTN’s corporate website and in its marketing materials. Notwithstanding the foregoing, Customer may, at any time, email firstname.lastname@example.org and provide MNTN with a written request that Customer would not to participate in press announcements, case studies, trade shows, or other forms of publicity. Customer may also provide a written request that MNTN remove Customer’s logo or name from MNTN’s corporate website.
- Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.
- Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together will be considered one and the same agreement.
- Survival. The terms and conditions of Sections 4.3 (Effect of Termination), 7 (Intellectual Property Rights), 9 (Confidentiality) as specified therein, 10 (Representations and Warranties), 11 (Indemnification), 12 (Limitation of Liability), 13 (Dispute Resolution; Arbitration Agreement; No Class Action) and 14 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement.