Vistar Media

The following Terms of Service ("Terms of Service") will be legally binding on the Customer upon execution of the Vistar Media Demand Services Order Form. The Customer should carefully read the following Terms of Service before executing the Order Form.

Please read these terms and conditions carefully before using the Demand Side Services offered by Vistar Media, Inc., a Delaware corporation ("Vistar"). By mutually executing one or more order forms with Vistar (each, an "Order Form") or by accessing or using the Vistar Demand Services in any manner, you ("you" or "Customer") agree to be bound by these terms (the "Agreement") to the exclusion of all other terms. You represent and warrant that you have the authority to enter into this Agreement; if you are entering into this Agreement on behalf of an organization or entity, references to "you" and "Customer" in this Agreement refer to that organization or entity. If you do not agree to all of the following, you may not use or access the Vistar Demand Services in any manner.

Whereas, Customer desires to use the Demand Side Platform (the "DSP" or the 'Platform') provided by Vistar for purchasing advertising space on digital outdoor advertising screens and mobile applications, subject to availability by Media Owners and operators via programmatic channels ("Services"), and Vistar desires to provide such Services pursuant to this Agreement.

1. Definitions. For the purpose of these Terms of Service, the following definitions apply:
"Agreement" refers to the Terms of Service, including any Order Forms, governing the relationship between Customer and Vistar Media, Inc.
"Customer" or "Company" refers to any individual, organization, or entity that enters into this Agreement with Vistar Media, Inc. by executing an Order Form and uses the Services provided.
"Demand Side Platform" (DSP) or "Platform" refers to the technology platform provided by Vistar Media, Inc. for purchasing advertising space on digital outdoor advertising screens and mobile applications through programmatic channels.
"Order Form" refers to the mutually executed document that specifies the services to be provided by Vistar Media, Inc., the fees, and other terms and conditions specific to the engagement between Vistar and the Customer.
"Services" refers to the advertising services provided by Vistar Media, Inc. through its Demand Side Platform, including but not limited to the purchasing of advertising space as available or made available by media owners and operators.
"Confidential Information" means non-public information about either Party's business or activities that is proprietary and confidential, including all business, financial, technical, and other information marked or designated as "Confidential.

2. Representations and Warranties
Each Party hereby represents and warrants that:
It possesses the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder. 
It will perform its obligations under this Agreement in strict compliance with all applicable local, state, federal, and international laws, regulations, and ordinances. This encompasses, but is not limited to, laws related to privacy, data protection, intellectual property, consumer protection, and the advertisement and sale of products or services.
It is solely responsible for any content, data, or material that it provides or uses in connection with the Services, including ensuring that such content does not infringe, misappropriate, or violate any third party’s intellectual property rights, or any laws or regulations. The Party guarantees that it has obtained all necessary licenses, rights, consents, and permissions required for the use of such content in connection with the Services.
The execution of this Agreement, the performance of its obligations hereunder, and the use of the Services will not conflict with or result in a breach of any other agreement to which it is a party, including any rights of any third parties.

By making these representations and warranties, each Party acknowledges that any breach of these statements may constitute a material breach of the Agreement, subjecting the breaching Party to the appropriate legal consequences.

3. Customer Rights and Restrictions
Customer will not nor attempt to, and will not permit or assist any other entity to or attempt to (i) copy, reproduce, modify, damage, disassemble, decompile, reverse engineer, or create derivative works of the Services or any portion thereof; (ii) breach, disable, tamper with, or develop or use (or attempt) any work around for any security measure provided by the Services; or (iii) use the Services or any part thereof in any manner other than as permitted herein; (iv) use the Services in a way that infringes or misappropriates a third-party’s intellectual property rights or personal rights; (v) engage in any promotional or marketing activities that are deceptive, misleading, obscene, defamatory or illegal; (vi) use any device, software or routine to interfere or attempt to interfere with proper working of the Services or any activities conducted on Vistar’s servers; (vii) interfere with others’ use of the Services; (viii) alter or tamper with any information or materials on or associated with the Services. 

4. Payment
Unless otherwise specified in an Order Form or mutually agreed upon between the Parties, all fees due under the Order Form will be paid in accordance with the relevant Order Form and shall be paid in the local currency in which the Customer wishes to utilize the Services, and by wire transfer, check or other means expressly agreed to in writing by the Parties. Customer shall pay Vistar the fees set forth in the Order Form within 30 days of the end of the calendar month. All fees are exclusive of Taxes. If the platform expenses exceed €15,000 in one month, Vistar will be entitled to send a sub invoice sooner or to request a security deposit/bank guarantee from Customer. 

Vistar reserves the right, at its sole discretion, to engage and utilize any of its subsidiaries, affiliates, or other related entities ("Assisting Parties") to assist, in whole or in part, in the processing, execution, or fulfillment of transactions contemplated under this Agreement. Customer acknowledges and agrees that such Assisting Parties may be involved in the performance of the duties and responsibilities of Vistar as provided in this Agreement, and Customer consents to such involvement.

5. Measurement 
Campaigns that are active on the Platform shall serve advertisements. The Platform measures how many chances of showing an advertisement are won based on the international Real-Time Bidding (RTB) standard. RTB enables the platform to bid in real time on advertising space made available through an auction system.  The price is calculated on the basis of the number of chances won. Vistar’s Platform is the principle reporting system used in determining the number of times advertisements are shown and shall be used to calculate any payments owed by Customer to Vistar. 

6. Right of Transition
Customer understands that Vistar currently operates a (i) Vistar branded DSP and (ii) a DSP branded by its subsidiary Sage + Archer. Vistar reserves the right to remove any of the DSPs listed above at a later date for convenience and may transition Customer and its data to a different DSP operated by Vistar.  This Agreement shall govern regardless of a change between the original DSP that Customer uses and the one that it is transitioned to in the future. 

7. Confidentiality
For the purposes of this Agreement, the term “Confidential Information” means non-public information about the Disclosing Party’s business or activities that is proprietary and confidential, which shall include, all business, financial, technical, and other information of a Party marked or designated “Confidential” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential. Confidential information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the Receiving Party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation, (c) the Receiving Party can establish that it knew prior to receiving such information from the Disclosing Party, or (d) the Receiving Party can establish that it developed independently without reference to or use of the confidential information of the other Party. 
Each Party agrees (a) that it will not disclose to any third-party or use any Confidential Information disclosed to it by the other except as expressly permitted in the Agreement and (b) that it will take commercially reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which in no event will be less than the measure it uses to maintain the confidentiality of its own information of similar importance. 
Notwithstanding the foregoing, each Party may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise required by law or (b) on a “need-to-know” basis under an obligation of confidentiality to its attorneys, accountants, banks and other financing sources and their advisors so long as the recipient(s) sign a copy of the Agreement acknowledging the confidentiality of the information and undertaking to be bound by all appropriate terms of the Agreement, and furthermore, so long as the respective Party remains fully liable for the actions and inactions of such Parties. 

8. Publicity; Press Releases
Neither Party will issue any publicity or general marketing communications concerning this relationship, including a press release, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, except that, during the term of this Agreement, Vistar may state publicly, in writing or otherwise, that Customer utilizes Vistar’s Services. 

9. Indemnification
Each Party hereto (the “Indemnifying Party”) shall indemnify, defend (or settle) and hold harmless the other, and each of its respective directors, officers, employees, agents, representatives, successors, and assigns (collectively, the “Indemnified Party”) against judgement, claims, liabilities, settlements, penalties, costs and expenses (including reasonable attorneys’ fees) in connection with protecting its Confidential Information, claims, actions, suits, proceedings or investigations by any third-party to the extent that such liabilities arise out of the Indemnifying Party’s breach of any warranty or its obligations under this Agreement.

Customer hereby acknowledges its participation in transactions facilitated through an advertising exchange operated by Vistar. Within the scope of said transactions, Customer shall exercise discretion in selecting digital screens for its advertising campaigns. Customer further acknowledges that the digital screens featured on the Vistar exchange are the property of, and operated by, third-party digital screen owners ("Media Owners"). Accordingly, in light of the transaction involving Customer and the Media Owners of Ad Inventory, it is expressly understood that the Media Owners are intended to be third-party beneficiaries with regard to Customer’s representations, covenants, and obligations set forth herein. Customer affirms and guarantees that it shall not assert any defense based on lack of privity should any Media Owner, upon notice, seek cooperation in cases where the advertising campaign content provided by Customer displays content that infringes upon a third party's intellectual property rights

10. Limitations of Liability
Under no circumstances shall either Party be liable for indirect, incidental, consequential, special or exemplary damages (even if such damages are foreseeable, and whether or not such Party has been advised of the possibility of such damages) arising from any aspect of this Agreement. With the exception of indemnification obligations, in no event shall Vistar’s total liability, from all causes of action and all theories of liability exceed $10,000. The Parties have agreed that these limitations will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

11. Term; Termination; Suspension
This Agreement becomes effective upon the signing of the Order Form and remains in force until terminated by either party, with either party having the right to terminate by giving seven (7) business days' written notice..

12. Miscellaneous
12.1 This Terms of Service, including any Order Forms, constitutes the complete and exclusive understanding and agreement between the Parties regarding the subject matter and supersedes all prior or contemporaneous agreements or understandings relating to the subject matter. No modification of this Agreement will be effective unless contained in a writing executed by duly authorized representatives of both Parties. 
12.2 The Parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employer-employee relationship is intended or created hereby.
12.3Neither Party may assign all or any portion of its rights or obligations under this Agreement to any third-party without the prior written consent of the other Party to this Agreement. Notwithstanding the foregoing, either Party may assign all or any portion of its rights and obligations under this Agreement to any successor by way of merger or consolidation or in connection with the sale or transfer of all or substantially all of its business and assets relating to this Agreement without the consent of the other Party to this Agreement, provided that (a) such Party gives prompt written notice of such assignment to the other Party and (b) without the written consent of the non-assigning Party, no such assignment shall release the assigning Party from any of its obligations under this Agreement. Additionally, Vistar may assign the rights to this Agreement to any of its subsidiaries. 
12.4 The waiver by either Party or any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Either Party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such Party’s right to demand strict performance in the future. 
12.5In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (a) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (b) the remaining terms, provisions, covenants, and restriction of the Agreement will remain in full force and effect. 
12.6Neither Party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, war, terrorism, riot, earthquakes, telecommunications line failures, electrical outages, network failures, acts of god, or labor disputes.
12.7This Agreement shall be governed by and construed in accordance with the laws of New York, without regard to the conflicts of law provision thereof. Both Parties consent to the jurisdiction of the courts of New York with respect to any legal proceeding arising in connection with the Agreement. Any claim or controversy of whatever nature, including but not limited to tort or contract claims, claims based upon any federal, state, or local statute, law, order, ordinance or regulations, and claims relating to or arising out of any relationship before, at the time of entering, during the term of, or upon or after expiration or termination of this Agreement, or breach thereof, shall be resolved by final and binding arbitration association in New York City, New York. Judgement upon the award may be entered in any court having jurisdiction. In the event either Party brings a lawsuit, claim, or other legal action based on this Agreement in a court of law, such action must be brought in New York City, New York. 
12.8 Sections of this Agreement that by their nature should reasonably survive termination or expiration of this Agreement shall survive such termination or expiration.