Terms of Service for the Vistar Media Demand-Side Platform

These Terms of Service (the “Terms”) constitute a legally binding agreement (the “Agreement”) between Vistar Media, Inc., a Delaware corporation (“Vistar”), and the company or entity identified on an executed Order Form (“Company”). By (i) executing a Vistar Media Demand Services Order Form (including any exhibits attached thereto), or (ii) accessing or using the demand-side platform (“DSP”), Services, or other Vistar products in any manner, Company agrees to be bound by this Agreement, to the exclusion of any other terms or conditions.

Company represents and warrants that it has the full power and authority to enter into this Agreement. If an individual is entering into this Agreement on behalf of a business or other legal entity, such individual represents and warrants that they have the legal authority to bind that entity, and all references to “Company” or “you” herein shall refer to such entity. Each of Vistar and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”

If Company does not agree to be bound by the terms of this Agreement, it may not access or use the DSP, Services, or any other Vistar products.

Whereas, Company desires to use the DSP and related Services provided by Vistar for the purchase of advertising inventory on digital out-of-home media screens, subject to availability as offered by Media Owners or Supply Partners, and 

Whereas, Vistar desires to provide such DSP and Services pursuant to this Agreement and any applicable Order Forms, the Parties agree as follows:

1.    Representations and Warranties
1.1.    Each Party represents and warrants to the other Party that:
1.1.1.    it is duly organized, validly existing, and in good standing under the laws of its jurisdiction;
1.1.2.    it has full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations under this Agreement;
1.1.3.    the execution of this Agreement has been duly authorized by all necessary action;
1.1.4.    its performance will comply with applicable laws, rules, and regulations; and 
1.1.5.    when executed and delivered by both Parties, this Agreement, including any Order Form(s) and any Exhibits attached thereto, will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. 
1.2.    Disclaimer of Warranties: EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, ALL SERVICES AND THE DSP ARE PROVIDED “AS IS.” VISTAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VISTAR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS, INCLUDING BUT NOT LIMITED TO THE DSP, OR RESULTS OF THE USE THEREOF, WILL MEET COMPANY’S OR ADVERTISER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT OR BE ERROR FREE. ALL INVENTORY PROVIDED TO COMPANY OR ADVERTISERS, AS APPLICABLE, IS PROVIDED, OWNED, OPERATED, SERVICED, AND/OR OTHERWISE MAINTIANED BY MEDIA OWNER(S) (OR SUPPLY PARTNER(S), AS APPLICABLE); VISTAR MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE DISPLAY OF ADS AND/OR ADVERTISING MATERIALS OR WITH RESPECT TO THE INVENTORY AND THE PROVISION, OPERATION, SERVICE, AND/OR MAINTENANCE THEREOF.

2.    Company Rights and Restrictions
2.1.    Company shall not, and shall not permit or assist any other entity to or attempt to
2.1.1.     copy, reproduce, modify, damage, disassemble, decompile, reverse engineer, or create derivative works of Vistar’s Services, products, or any portion thereof; 
2.1.2.    breach, disable, tamper with, or develop or use (or attempt) any work around for any security measure provided by Vistar’s Services or products; 
2.1.3.    use Vistar’s Services, products, or any part thereof in any manner other than as permitted herein; 
2.1.4.    use Vistar’s Services or products in a way that infringes, violates, or misappropriates a Third-Party’s intellectual property rights or personal rights; 
2.1.5.    use Vistar’s Services or products to engage in any promotional or marketing activities that are deceptive, misleading, obscene, defamatory, or illegal;
2.1.6.    use any device, software, or routine to interfere or attempt to interfere with proper working of Vistar’s Services, products or any activities conducted on Vistar’s servers; 
2.1.7.    impose an unreasonable, disproportionally large, or otherwise unapproved volume load on the infrastructure of any of Vistar’s Services or products ; 
2.1.8.    interfere with others’ use of Vistar’s Services or products ; or 
2.1.9.    alter or tamper with any information or materials on or associated with Vistar’s Services, products. 
2.2.    Company and/or Advertiser understand, agree, and acknowledge that the form and appearance of all Ads and Advertising Materials shall be subject to the prior review and approval of the relevant Media Owner (or Supply Partner, as applicable). 
2.3.    If available and applicable, subject to all applicable Privacy Laws, to the extent set forth in an executed master data services agreement (“Data Order Form”), Vistar may provide Company or its third party service providers (“Processors”) with mobile advertising identifiers, such as Apple’s unique identifier for advertising on iOS devices (IDFA) and Google’s unique identifier for advertising on Android devices (AAID) (collectively, “MAIDs”). Such services shall be subject to the terms and conditions of this Agreement and those of the Data Order Form. 

3.    Payment
3.1.    Unless otherwise specified in an Order Form (including any Exhibits attached thereto) or mutually agreed upon between the Parties, all monies owed, including but not limited to all fees, will be paid in accordance with this Agreement and relevant Order Form. Vistar reserves the right to charge fees in an invoice not contemplated on the corresponding Order Form at its discretion without being required to provide notice to Company. Vistar will invoice Company monthly after the end of each calendar month for fees, and any other monies owed if applicable, due to Vistar pursuant to the relevant Order Form. 
3.2.    Invoices shall be paid the currency indicated on the Order Form, and by wire transfer, check or other means expressly agreed to in writing by the Parties. Payment by Company of invoices shall be due to Vistar thirty (30) days from date of issuance thereof. 
3.3.    All fees are exclusive of taxes. Company shall also be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to provision of the Services set forth in the applicable Order Form (except for taxes on Vistar’s income). In no event shall Company’s obligation to pay fees, whether under this or any other agreement with Vistar, be subject to set off. For purposes of clarification, unless otherwise expressly set forth therein, fees payable under any individual Order Form do not supersede those payable under any other Order Form. 
3.4.    Late payments will bear interest at 1.5% per month or the maximum rate permitted by law, whichever is less, calculated from the date such amount was due until the date that payment is received by Vistar. 
3.5.    If Company fails to pay fees invoiced by Vistar within thirty (30) days following the payment due date, Vistar shall have the right to suspend performance of the Services without notice; such Service not to be reinstated until Company pays all such overdue amounts and an additional reinstatement fee. Company will reimburse Vistar for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
3.6.    Company agrees and acknowledges that the report generated by Vistar shall serve as the sole support for invoices and Company will not require any other supporting documentation for payment of such invoices.
3.7.    In the event that any portion of this Agreement or an Order Form is found to be invalid or unenforceable, the Company’s payment obligations under valid portions shall remain unaffected and enforceable. Company shall not withhold or offset payment due to any such determination.

4.    Confidentiality
4.1.    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. 
4.2.    Each Party agrees that it shall use the Confidential Information of the Disclosing Party only for purposes authorized by this Agreement, and any Order Form related hereto, and it shall not disclose to any Third-Party or otherwise use any Confidential Information of the other except for purposes of exercising its rights and performing its obligations under this Agreement, applicable Order Form (including any Exhibits attached thereto), or as otherwise approved in writing by the other Party. Each Party shall only permit access to and use of the Confidential Information of the Disclosing Party to its employees and authorized representatives on a strictly need-to-know basis and who have agreed in writing to protect the confidentiality of such information. Notwithstanding anything to the contrary in this Agreement, to the extent permitted by applicable law, Vistar may use and disclose Company Data in an aggregate and anonymized manner for purposes of enhancing its products and services offered to Vistar’s customers including Company. 
4.3.    Each Party shall take all such action as shall be necessary or appropriate to preserve, protect, and maintain the confidentiality of the Disclosing Party Confidential Information in Receiving Party’s 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, and which shall not be less than the standard of reasonable care. 
4.4.    Confidential Information shall not be reproduced or stored in any form except as required to accomplish the intent of this Agreement and any applicable Order Form (including any Exhibits attached thereto). Any reproduction of any Confidential Information of the other Party by either Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the Disclosing Party. 
4.5.    Confidential Information will not include information that 
4.5.1.    is in or enters the public domain without breach of this Agreement 
4.5.2.    Receiving Party lawfully receives from a Third-Party and/or Media Owner (or Supply Partner, as applicable) without restriction on disclosure and without breach of a nondisclosure obligation
4.5.3.    Receiving Party can establish through written documentation that it knew prior to receiving such information from the Disclosing Party, or 
4.5.4.    Receiving Party can establish that it developed independently without reference to or use of Confidential Information provided by Disclosing Party. 
4.6.    Notwithstanding the foregoing, each Party may disclose Confidential Information: 
4.6.1.    in response to a valid court order from a court of competent jurisdiction or other governmental authority, or otherwise required by law, provided that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure, to the extent permitted under applicable law, in order to permit the Disclosing Party to seek confidential treatment of such information; or 
4.6.2.    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, specifically those found in this Section 4, and furthermore, so long as the respective Party remains fully liable for the actions and inactions of such Parties. 

5.    Publicity; Press Releases
5.1.    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 Company utilizes Vistar’s Services and/or products as applicable. 
5.2.    Furthermore, Company grants authorization to Vistar to use Company’s name and logo for limited promotional use to include:
5.2.1.    Vistar’s sales presentations and at industry conferences; 
5.2.2.    Vistar’s corporate website; and 
5.2.3.    within the interface of Vistar’s Services and/or products, as applicable. 

6.    Indemnification
6.1.    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 judgements, claims, liabilities, settlements, penalties, costs and expenses (including reasonable attorneys’ fees) resulting from any claim, demand, or action by a third party in connection with:
6.1.1.    a breach or alleged breach of any representation, warranty, covenant or other obligation set forth in this Agreement, including any applicable Order Form, by the Indemnifying Party, its affiliates, or any of their respective directors, officers, employees, agents, representatives, successors, and assigns; or
6.1.2.    gross negligence, or willful misconduct of the Indemnifying Party, its affiliates, or any of their respective directors, officers, employees, agents, representatives, successors, and assigns.

7.    Intellectual Property Claims
7.1.    Company shall indemnify, defend (or settle) and hold harmless Vistar and Vistar’s Indemnified Parties, against judgements, claims, liabilities, settlements, penalties, costs and expenses (including reasonable attorneys’ fees) resulting from any a claim, demand, or action that any materials provided by Company pursuant to this Agreement, including any applicable Order Form, violates, infringes, or misappropriates any patent, copyright, proprietary, or other intellectual property rights of a Third-Party.
7.2.    If an infringement claim is brought, or is likely to be brought, against Vistar or any Vistar Indemnified Party, Company shall, in addition to Company's obligation to indemnify the Vistar Indemnified Party, at Company’s sole cost, attempt to procure for Vistar the right to continue to use the infringing materials provided by Company, or modify it so that it is non-infringing, or replace Company’s infringing materials with non-infringing materials of substantially equivalent function. If Company is unable to procure commercially reasonably such right or make such modification or replacement, Vistar shall have the right to terminate this Agreement or any Order Forms. 
7.3.    Company understands that Media Owners (or Supply Partners, as applicable) of Inventory are intended third party beneficiaries of the Company’s representations, covenants and obligations, including those related to indemnification, stated in this Section herein. Company represents and warrants that it shall not assert a defense based on lack of privity against any Media Owner (or Supply Partner, as applicable) seeking to enforce any provision of this Section of the Agreement against it.

8.    Limitations of Liability
8.1.    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, including any Order Form(s) thereto. With the exception of indemnification obligations stated in Section 6, 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.

9.    Intellectual Property; Services
9.1.    Vistar is the exclusive owner of and holds and shall retain, all right, title and interest in and to the Services, DSP, products, documents, procedures, methods and other intellectual property developed by and/or on behalf of Vistar (“Vistar IP”).  For purposes of the foregoing, the term intellectual property means any and all intellectual property in the broadest sense of the term and includes such things as: concepts; discoveries; designs; computer software; and programs; data and technical information (irrespective of whether in human or machine readable form); inventions (whether or not patentable); works of authorship; patents; trade secrets; copyrights; mask works; trademarks; and goodwill. Company has no right, license, or authorization with respect to any Vistar IP except as expressly set forth in this Agreement.
9.2.    It is understood that Company and/or Advertiser may have feedback, suggestions, or comments that may, in Vistar’s sole discretion, be incorporated into Vistar’s Services and/or products Notwithstanding anything to the contrary herein, Company and Advertiser acknowledge and understand that Vistar shall own exclusively and in perpetuity any and all rights, title, and interest in and to any enhancements suggested by Company and/or Advertiser. Company and/or Advertiser hereby assign all of its right, title, and interest in any such enhancements suggested to Vistar and Company and/or Advertiser will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this Section.
9.3.    Vistar reserves the right, in its sole discretion, to make changes to the Services, DSP, or other applicable products that it reasonably deems necessary or useful to maintain or enhance the quality, efficiency or performance of such to its prospective clients or customers, including Company; or to comply with applicable law. 
9.4.    In the event that Vistar makes modifications to the Services, DSP, or other applicable products that Vistar believes will require Company to make changes to the Company’s system(s) in order to maintain the functionality described in the applicable Order Form, Vistar shall give Company at least thirty (30) days prior written notice of the modifications; provided, that, Vistar may give less notice if such modification is necessary to comply with applicable law or regulations. Vistar shall be responsible, at its expense, for making necessary changes to the Services, DSP, or other applicable products prior to releasing the modifications, and Company shall be responsible, at its expense, for making the necessary changes to the Company’s System. The foregoing notwithstanding, Vistar shall not be responsible for any interruption in Company or Advertiser’s use of the Services, DSP, or other applicable products prior to Company’s implementation of the appropriate changes to the Company System.

10.    Term; Termination
10.1.    This Agreement shall become effective as of the Effective Date on an Order Form or on such date as Company begins use of access to the DSP, Services, or other Vistar products, whichever is earlier, and shall remain in effect for as long as an Order Form referencing or incorporating this Agreements remains valid and in effect, or Company continues to use or access the DSP, Services, or other Vistar products, unless terminated earlier pursuant to the terms of Section 10.2 or 10.3. 
10.2.    Without limiting any other rights, remedies and recourses available at law or in equity, each Party shall have the right to terminate this Agreement if the other Party fails to perform any material covenant, warranty, condition or term in the Agreement, including any Order Form(s) (and any Exhibits attached thereto), and said failure is not cured by such other Party within sixty (60) business days of its receipt of written notice of such default.
10.3.    A Party may terminate this Agreement immediately by giving written notice to the other Party upon the occurrence of any of the following events, if the other Party;
10.3.1.    ceases to do business, or otherwise terminates its business operations;
10.3.2.    shall fail to promptly secure or renew any material license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement, or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within thirty (30) days; or
10.3.3.    becomes insolvent, or seeks protection under any bankruptcy, receivership, trustee, creditor’s arrangement composition or comparable proceeding, or if any such proceeding is instituted against the other Party and not dismissed within thirty (30) days.

11.    Miscellaneous
11.1.    This Agreement, including any Exhibits hereto, constitutes the complete and exclusive understanding and agreement between the Parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous Agreements or understandings relating to their subject matter. No modification of this Agreement will be effective unless contained in a writing executed by duly authorized representatives of both Parties. 
11.2.    The Parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employer-employee relationship is intended or created hereby.
11.3.    Neither 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 as applicable 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. 
11.4.    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. 
11.5.    In 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. 
11.6.    Neither 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.
11.7.    This 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 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. 
11.8.    This Agreement may be executed by the Parties in any number of counterparts, including, without limitation, by facsimile transmission or by transmission of a .PDF or other similar file via email, each of which will be deemed to be an original, including, without limitation, those sent by facsimile transmission or by transmission of a .PDF or other similar file via email, but all such counterparts will together constitute one and the same instrument. 
11.9.    Unless otherwise stated by Vistar all notices to Vistar shall be given by certified mail, return receipt requested; or U.S. mail, delivery confirmation; or by nationally recognized overnight courier to Vistar Media, Inc., 149 Fifth Avenue, Sixth Floor, New York NY 10010, ATTN Legal Department
11.10.    Sections of this Agreement that by their nature should reasonably survive termination or expiration of this Agreement shall survive such termination or expiration.

12.    Definitions
“Ad” means any advertising campaign executed through the Platform
“Advertiser” means any client on whose behalf the Company accesses or uses the Services or Platform.
“Advertising Material” means any creative element, media component, design concept, or related asset provided by or on behalf of Company or Advertiser for use in Ads.
“Agreement” means these Terms of Service and any associated Order Forms, including all exhibits and attachments.
“Company” means the party identified on an Order Form or otherwise using or accessing the Services, and includes its authorized users and affiliates.
“Company Data” means any data, materials, or information provided by Company or Advertiser in connection with its use of the Services, including MAIDs, targeting parameters, and campaign performance data, but excluding Vistar IP.
“Confidential Information” has the meaning set forth in Section 4 of this Agreement.
“Cost of Media” means the closing price paid by Company for Inventory, whether acquired via auction (e.g., from a Supply Partner) or direct transaction with a Media Owner.
“DSP” or “Platform” means Vistar’s proprietary demand-side platform and related tools for media planning, ad serving, targeting, and reporting.
“Disclosing Party” means the Party providing Confidential Information.
“Effective Date” means the earlier of (i) the date set forth on the applicable Order Form as the effective date or (ii) the date Company first accesses or uses the Services, whichever occurs first.
“Exhibits” means all schedules, attachments, or other documents referenced in or attached to an Order Form and expressly incorporated into this Agreement.
“Inventory” means a digital screen or block of available (or “unsold”) impressions on such digital screens offered by a Media Owner or Supply Partner.
“MAID(s)” means mobile advertising identifiers, including Apple’s IDFA and Google’s AAID, provided subject to the terms of a Data Order Form.
“Media” means impressions purchased from a Media Owner or Supply Partner through Inventory that enable the Company to serve advertisements. For example, if the Company were to purchase 1,000,000 impressions for $1,000, it would be purchasing $1,000 worth of Media.
“Media Cost Total” means the total aggregate Cost of Media incurred during a given period across the Services.
“Media Owner” means the third party that owns or operates the digital screen on which Inventory is made available.
“Order Form” means a mutually executed document detailing Services, fees, and terms of use.
“Percent of Spend” refers to Vistar’s fee model where fees are calculated as a percentage of the Cost of Media.
“Privacy Laws” means all applicable laws, regulations, rules, and codes relating to the collection, use, disclosure, storage, security, and protection of personal information, data privacy, or data protection in any jurisdiction in which the Services are provided or used, including, without limitation:
•    In the United States: the California Consumer Privacy Act (as amended by the CPRA), the Virginia Consumer Data Protection Act, Colorado Privacy Act, and any similar U.S. federal or state data privacy laws;
•    In Canada: the Personal Information Protection and Electronic Documents Act (PIPEDA) and substantially similar provincial legislation;
•    In Australia: the Privacy Act 1988 (Cth);
•    In New Zealand: the Privacy Act 2020;
•    In Singapore: the Personal Data Protection Act 2012 (PDPA);
•    In the European Economic Area (EEA) and the United Kingdom: the General Data Protection Regulation (EU) 2016/679 (GDPR), the UK GDPR, and the Data Protection Act 2018;
and any binding guidance, decisions, codes of practice, or orders issued by competent data protection regulators or authorities in those jurisdictions.
“Processor” means any third-party service provider that processes MAIDs or other data on behalf of Company and pursuant to Company’s written instructions.
“Receiving Party” means the Party receiving Confidential Information.
“Services” means the advertising services and technology provided by Vistar, including access to the Platform.
“Supply Partner” means any third-party inventory provider whose media supply is accessible via the Platform.
“Third Party” means any person or entity that is not a Party to this Agreement.