MikMak Master Service Agreement
This Master Service Agreement (“Agreement”) is entered by and between (i) TIPO Entertainment, Inc. d/b/a MikMak, a Delaware corporation (“MikMak”), and (ii) the individual, company, or other legal entity named as a customer in the Order Form (“Customer”), and (iii) the agency named as the Customer’s agent (“Agency”) in the Order Form, if any. This Agreement includes and incorporates each Order Form and each Statement of Work, if applicable. An Order Form or Statement of Work may be amended or added at any time if signed and dated by both parties. All subsequent Order Forms or Statements of Work will be subject to the terms and conditions set forth herein.
BY (1) CLICKING OR CHECKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AND AGENCY (IF APPLICABLE) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE CUSTOMER OR AGENCY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- “Authorized User” means each of Customer’s and Agency’s employees, agents, and independent contractors who are provided access protocols by Customer, Agency, or MikMak.
- “Beta Services” means the service(s) MikMak makes available to Customer for testing purposes, subject to the terms and conditions described in Exhibit B. Exhibit B is hereby incorporated by reference.
- “Confidential Information” means any trade secret, proprietary, or other nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure, or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. Information will not constitute the Disclosing Party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality.
- “Customer Content” means the data, information, text, graphics, photographs, images, video, audio, SKUs, return policies or other content owned or licensed by Customer and provided to MikMak under this Agreement, including, product descriptions, suggested sale price, and any other information identified as the Customer Content, including, as applicable, sample products. Customer Content includes images or videos that are modified by MikMak for use in MikMak Platform video players, such as through the performance of video-editing services. Customer Content does not include the MikMak Platform video players that incorporate Customer Content or derivative works of these MikMak Platform video players.
- “Customer Trademark” means the Customer’s brands and all related trademarks, service marks, trade dress, slogans, logos, taglines, labels and other designs and product identifications.
- “Documentation” means user guides, help information and other documentation regarding the MikMak Platform and Beta Services provided by MikMak to Customer and/or Agency in electronic or other form.
- “MikMak Platform” means MikMak’s suite of proprietary web-based applications as described Exhibit A. Exhibit A is hereby incorporated by reference.
- “Order Form” means a document defining the scope of Customer’s and/or Agency’s use of the MikMak Platform, Beta Services, and other Services as applicable, and which sets forth the fees for the same.
- “Performance Data” means data collected from engagement with MikMak Platform-enabled Customer Content, such as number of visits, time spent, video completions, views of product information, clicks on the “add to cart” button and retailer selection.
- “Personal Information” means information pertaining to Customer, its employees, agents or customers which specifically identifies or which, when combined with other information, could be used to identify an individual, such as name, location, IP address or other similar identifiers.
- “Sales Insight” means the data analytics service leveraging retailer and affiliate APIs relating to users who engage with MikMak Platform-enabled Customer Content (“Sales Insight Data”), which is then surfaced as data within the MikMak Platform. Sales Insight Data is not Performance Data.
- “Services” means MikMak Platform, Sales Insight, and any other services listed in Exhibit A and which may be included in the Order Form or SOW as applicable.
- “SOW” means a statement of work provided by MikMak and agreed to by Customer and/or Agency in writing relating to postproduction services as described in Exhibit A.
- Access. MikMak will provide Customer or Agency as applicable with access to the Services during the term stated on the applicable Order Form. MikMak will provide to Customer and Agency the necessary passwords, security protocols and policies, network links or connections, and access protocols to allow Customer and Agency and their Authorized Users to access the Services. Customer and Agency will be solely responsible for any unauthorized access to, or use of, the Services, and notify MikMak promptly of any such unauthorized use known to Customer or Agency.
- License. Subject to the terms and conditions of this Agreement, MikMak grants to Customer and Agency a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 12.5) license during the Term to: (a) access and use Services (Sections 2.3-2.4); (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the Services
- MikMak Platform. If the Services include the provision of MikMak Platform, then, subject to the terms and conditions of this Agreement, MikMak grants to Customer and Agency a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 12.5) license to use and effect the display of the MikMak Platform on Customer’s and Agency’s digital properties or the digital properties of third-party publishers identified in the Order Form or SOW (“Permitted Properties”). Notwithstanding the foregoing, Customer and Agency may sublicense the foregoing rights solely as necessary to effect the display of the MikMak Platform on the Permitted Properties. Customer and Agency will not modify, remove, obscure or disable any element of MikMak Platform.
- Sales Insight. If the Services include the provision of Sales Insight, MikMak grants to Customer and Agency a limited, non-sublicensable, non-exclusive, non-transferable license to access the Sales Insight Data in the form and in accordance with the Documentation or instructions provided by MikMak.
- Restrictions. Except as expressly permitted herein, Customer and Agency will not, and will not permit any Authorized User or other party to, directly or indirectly: (a) allow any third party who is not an Authorized User to access the Services, Beta Services, or Documentation; (b) modify, adapt, alter or translate the Services, Beta Services, or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services, Beta Services, or Documentation for the benefit of any unauthorized third party (including, without limitation, for service bureau purposes); (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services or Beta Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or Beta Services or the hardware and network used to operate the Services or Beta Services; (f) modify, copy or make derivative works based on any part of the Services, Beta Services, or Documentation; (g) access or use the Services or Beta Services to build a similar or competitive product or service; (h) attempt to access the Services or Beta Services through any unapproved interface; or (i) otherwise use the Services or Beta Services in any manner inconsistent with applicable law, the Documentation, or this Agreement.
- Postproduction Services. Where the parties have agreed to MikMak’s provision of postproduction Services, they will enter into a mutually executed SOW governing the provision of such postproduction services. In the event of a conflict between the terms and conditions of any SOW and the terms and conditions of this Agreement, the terms and conditions of this Agreement will govern. Each SOW will include: (i) a description of the postproduction services; (ii) the schedule for the performance of the postproduction services; (iii) if other than as set forth in this Agreement, the ownership rights with respect to the work product resulting from the performance of the postproduction services; and (iv) if separate from the fees set forth in the Order Form, the fees for the performance of the postproduction services.
- Suspension of MikMak Services. Customer and Agency acknowledge that MikMak may suspend the delivery of the MikMak Platform or any component thereof at any time, including without limitation as necessary to protect MikMak’s systems from a denial-of-service attack, computer virus or any other threat to the security of MikMak’s systems or data. MikMak will provide Customer and Agency with reasonable notice in advance of any planned Service suspensions. MikMak may also suspend delivery of Sales Insight at any time if it is no longer able for any reason to provide said service. In that case, MikMak will provide Customer and Agency with as much notice as reasonably practical.
- Ownership. The Services (including without limitation the Sales Insight Data), Beta Services, Documentation, and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of MikMak and its suppliers and licensors. All rights in and to the Services, Beta Services, Sales Insight Data, and Documentation not expressly granted to Customer and Agency in this Agreement are reserved by MikMak and its suppliers and licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer or Agency regarding the Services, Beta Services, Sales Insight Data, Documentation, or any part thereof.
- Customer Content. Customer grants MikMak a non-exclusive, worldwide, royalty-free and fully paid up license during the Term (a) to use, reproduce, distribute, publicly display, publicly perform, modify and create derivative works of the Customer Content solely as necessary for purposes of providing the Services; (b) to use, reproduce, modify, and create derivative works of Performance Data solely as necessary for the purpose of providing the Services, including for MikMak’s internal and diagnostic purposes (e.g., to develop, provide and improve the Services and future MikMak products and services); and (c) to use the Customer Trademarks solely as required to provide the Services. All uses of the Customer Trademarks will be subject to the Customer’s trademark guidelines as made available to MikMak. All goodwill associated with the Customer Trademarks will inure solely to the benefit of the Customer. The Customer Content and Customer Trademarks and all worldwide intellectual property rights in and to such content and marks shall be the exclusive property of Customer. All rights in and to the Customer Content and Customer Trademarks not expressly granted to MikMak in this Agreement are reserved by Customer. Customer shall own all rights, title, and interest in Performance Data.
- Permitted Properties. As between the parties, the Permitted Properties and all content contained therein, apart from the MikMak Platform licensed hereunder, will remain the exclusive responsibility and property of Customer and Agency.
- Feedback. Customer and Agency hereby grant to MikMak a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and Agency, including Authorized Users, relating to the Services.
- Fees. Unless otherwise stated in the Order Form or SOW, Customer or Agency, as applicable, will pay MikMak the invoiced fees net 30 days from the invoice date. All fees must be paid in USD unless otherwise agreed by MikMak. Customer and/or Agency will provide MikMak with complete, accurate and up-to-date billing and contact information. Agency is jointly and severally liable with Customer for payment of Fees. MikMak reserves the right to suspend provision of the Services if fees are past due more than thirty (30) days.
- Taxes. All fees owed in connection with this Agreement are exclusive of, and Customer and/or Agency will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer and/or Agency in connection with this Agreement, except for employment taxes for MikMak employees and taxes based on MikMak’s net income.
- Interest. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
- Customer Warranty. Customer and Agency represent and warrant that the Customer Content and the use thereof by or on behalf of MikMak as contemplated herein will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage MikMak’s system or data; or (e) otherwise violate the rights of a third party. MikMak is not obligated to back up any Customer Content; Customer and Agency are solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense.
- Data and Security. Customer, Agency, and their Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Services. Customer and Agency will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6. WARRANTIES AND DISCLAIMERS
- Representations of the Parties. Each party represents and warrants to the other that: (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of this Agreement, and (iii) its execution and delivery of this Agreement, and its performance hereunder, will not violate or conflict with any other contract or agreement to which it is a party.
- Limited Warranty. MikMak warrants to Customer and Agency that the Services will substantially conform to the Documentation during the Term. Provided that Customer or Agency notifies MikMak in writing of any breach of the foregoing warranty during the Term, MikMak will, as Customer’s or Agency’s sole and exclusive remedy, use commercially reasonable efforts to correct the defect. This warranty gives Customer and Agency specific legal rights, and Customer and Agency may also have other rights which vary from jurisdiction to jurisdiction.
- Agency Warranty. Agency represents and warrants that it has the authority as Customer’s agent to bind Customer to this Agreement and any Order Form or SOW thereunder, and that all of Agency’s actions related to this Agreement will be within the scope of such agency. Agency will defend, indemnify, and hold harmless MikMak and its and their affiliates and representatives from claims, liabilities, losses, costs, and expenses (including reasonable legal fees and disbursements) resulting from Agency’s alleged breach of the foregoing sentence.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.2 , AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MIKMAK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER AND AGENCY BY MIKMAK. MIKMAK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
- Scope. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS HEREUNDER (SECTION 8) OR ANY MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY (SECTIONS 2 AND 3), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR DATA AND SIMILAR CLAIMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES; AND (B) THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY OR ON BEHALF OF CUSTOMER TO MIKMAK DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MIKMAK’S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. The Receiving Party agrees (a) not to use or disclose any Confidential Information except as expressly authorized by this Agreement; (b) to protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with less than a reasonable degree of care; (c) to hold the Disclosing Party’s Confidential Information in strict confidence; and (d) to limit access to the Disclosing Party’s Confidential Information to those of its employees, agents or Authorized Users having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein.
- Compelled Disclosure. Nothing herein shall prevent the Receiving Party from disclosing any Confidential Information or Personal Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose and (b) cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.
- Return or Destruction of Confidential Information. Upon written request by the Disclosing Party, a Receiving Party shall destroy or return (as instructed by the Disclosing Party) all Confidential Information in its possession, except solely to the extent such Confidential Information may be deemed reasonably necessary to document the Receiving Party’s performance or compliance with this Agreement. Nothing in this Section 8.3 shall require the destruction or alteration of computer back-up tapes or similar storage made in the ordinary course of the Receiving Party's business that contain the Disclosing Party's Confidential Information, provided that Receiving Party shall continue to comply with its obligations herein with respect to such Confidential Information.
9. PERSONAL INFORMATION, DATA PROTECTION AND SECURITY
- Personal Information. Customer and Agency agree that in performing its obligations hereunder, MikMak may gain access to, or otherwise store, process or transmit, certain Personal Information. MikMak will only use Personal Information as necessary to perform the Services or as required or permitted by law, and MikMak shall not further collect, retain, use, disclose, sell, lease, make available, or otherwise process Personal Information for any other purpose. MikMak shall assist Customer in fulfilling Customer’s obligation to respond to individuals’ requests to exercise their rights under applicable law with respect to their Personal Information.
- Security Measures. MikMak will implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Information within MikMak’s control and take such other actions as are necessary to maintain conformance with high industry standards of security.
- Notification of Data Breach and Incident Response. In the event an unauthorized third party gains access to, alters, exfiltrates, or otherwise compromises the security of Personal Information (a “data breach”) held by MikMak, MikMak shall promptly notify Customer and/or Agency and provide, to the extent possible, details of the data breach including the steps being taken to mitigate potential risks and harm. Notification by MikMak of a data breach does not represent any acknowledgement or acceptance by MikMak of fault or liability with respect to the data breach.
- By MikMak. MikMak will defend at its expense any suit brought against Customer, and will pay any settlement MikMak makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services misappropriate any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. If any portion of the Services becomes, or in MikMak’s opinion is likely to become, the subject of a claim of infringement, MikMak may, at MikMak’s option: (a) procure for Customer or Agency the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that they become non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and, upon such termination, Customer and Agency will immediately cease all use of the Services and Documentation. Notwithstanding the foregoing, MikMak will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by MikMak; or (y) any modification of the Services by any person other than MikMak or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of MikMak, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- By Customer. Customer and Agency will defend at its expense any suit brought against MikMak, and will pay any settlement Customer or Agency makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s or Agency’s breach or alleged breach of its obligations hereunder. This Section 10.2 states the sole and exclusive remedy of MikMak and the entire liability of Customer and Agency, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- Term. This Agreement enters into force as of the date of its execution (“Effective Date”) and continues in full force and effect as long as any Order Form or SOW remains in effect (“Term”).
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles. Customer and Agency hereby expressly consents to exclusive personal jurisdiction and venue in the state and federal courts for the county in which MikMak’s principal place of business is located for any lawsuit arising from or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export. Customer and Agency agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from MikMak, or any products utilizing such data, in violation of the United States export laws or regulations.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. No party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other parties, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that MikMak may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of Customer or Agency. Subject to the foregoing, the terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. MikMak’s relationship with Customer and Agency is that of an independent contractor, and neither party is an agent or partner of the other. Neither Customer nor Agency will have, and will not represent to any third party that it has, any authority to act on behalf of MikMak.
- Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing by (i) a nationally recognized express mail service or (ii) email. Notice by express mail service will be effective upon receipt or refusal of delivery. Notice by email will be effective when sent even if the sender receives a machine-generated message that delivery has failed, provided that the sender sends a tangible copy of the notice by express mail service with ten business days of sending the email message. Notices under Section 10 hereunder must be delivered by express mail service. Notice shall be delivered:
- For MikMak:
Mail: 353 West 48th Street, 4th Fl MB #454
New York, NY 10036
- For Customer and Agency: as listed in the Order Form.
- For MikMak:
- Counterparts. This Agreement and other documents to be delivered pursuant to this Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement or document, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated hereby, bearing an original manual or electronic signature by facsimile transmission (including a facsimile delivered via the Internet), by electronic mail in “portable document format” (“.pdf”) or similar format intended to preserve the original graphic and pictorial appearance of a document, or through the use of electronic signature software will have the same effect as physical delivery of the paper document bearing an original signature.
- Publicity. During and after the Term (unless terminated by Customer due to MikMak’s breach thereof), MikMak shall have the right to reference Customer as a customer of MikMak’s (e.g., on the MikMak website and marketing materials), including using a Customer Trademark for such purposes, and Customer will make an appropriate representative available to answer questions about the Services from MikMak’s potential clients. Customer will further allow MikMak to create and use a public case study during or after the Term, and Customer will agree to participate in at least one press moment with MikMak during or after the Term.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer or Agency and MikMak.
Exhibit A - Product and Service Descriptions
Descriptions are illustrative of the MikMak’s portfolio of services and shall be applicable only as indicated within a properly executed Order Form or SOW.
- MikMak Platform – MikMak’s suite of proprietary web-based applications. Each license to the MikMak Platform shall be managed through one (1) Customer brand team unless otherwise noted in a fully executed Order Form. The MikMak Platform includes the following functionalities:
- MikMak Commerce
i. Hosting of customizable product detail pages that feature ad content provided by the Customer, as well as buttons to allow end-users to add the Customer’s products to an assortment of retailers’ shopping carts. Allows the Customer to place one or more of their own tracking pixels.
ii. Unique URLs for MikMak product detail pages, to allow for segmented reporting by platform, by campaign, or by individual influencer.
ii. Shoppable features include integration of multiple online and in-store retail partners and third-party pixels, as scoped.
- MikMak Insights
- Reporting on end-user activity (gathered from Creative and Discover features) within the MikMak Dashboard, such as number of visits, time spent, video completions, views of product information, clicks on the “add to cart” button and retailer selection.
- Performance Data and other insights are made available via the MikMak Dashboard’s customizable reports.
- Managed Services and Ongoing Support
- In scope:
i. Includes onboarding of the Customer’s unique products within MikMak’s proprietary web-based applications, and simple reformatting of Customer-provided video/photo asset(s) for fit/alignment within the MikMak user interface (i.e., formatting a widescreen video onto a vertical screen).
ii. Delivery of optimization recommendations at agreed intervals.
iii. Regularly scheduled status calls with the customer to review campaign-related details.
iv. Onboarding training and support for users’ optimization of the MikMak Dashboard on a mutually agreed timeline.
- Out of scope:
i. Advanced modifications to the Customer’s asset, including but not limited to color, text overlay, video content editing, motion graphics (text animation enhancements of existing customer assets), asset optimization (i.e. transitioning still to video graphics).
- In scope:
- MikMak Commerce
- Postproduction Services – A MikMak offering which includes up to a specified volume per month of ad unit and/or post-swipe MikMak Creative retouches of still and/or video assets. Postproduction services are governed by the additional terms in the Master Service Agreement and/or SOW and are only available for Customers with (an) active MikMak Platform license(s).
- MikMak Shopper(s) Measured - As applicable, a MikMak Shopper Measured is consumed on a 1:1 ratio for every instance a shopper lands within Customer’s MikMak Commerce experience. Customer’s license of MikMak Platform includes only up to the specified volume of Shoppers Measured, as indicated within a properly executed Order Form. If Customer exceeds the specified volume of Shoppers Measured, the Customer and MikMak will amend the Shoppers Measured quantity and associated fees, as directed within the Order Form. The volume of Shoppers Measured shall be scoped on an annual basis, unless otherwise specified within the Order Form. Unused Shoppers Measured, if any, shall expire on the earlier of the end of the pooling period or the end of the Term.
- Sales Insight: Sales data leveraging retailer and affiliate APIs relating to users who engage with MikMak Platform-enabled content, which is then surfaced as data within the Customer’s MikMak Dashboard. Included retailers are determined in MikMak’s sole discretion and data points may vary by retailer.
Exhibit B – Beta Services
Supplemental Terms. Notwithstanding anything to the contrary in the Agreement, the following terms shall apply to Customer’s use of the Beta Services:
- License. The particular features and functionalities of Beta Services will be described in an Order Form executed by the parties. Subject to the terms and conditions of the Agreement, the relevant Order Form, and this Exhibit B, MikMak grants to Customer a limited, non-sublicensable, nonexclusive, nontransferable license to use the Beta Services, in accordance with the instructions supplied by MikMak.
- Access and Restrictions. Customer will only disclose the Beta Services and the information, reports, data, or other deliverables or work product accessed by or provided to Customer in connection with the Beta Services (collectively such information, reports, data, or other deliverables or work product, the “Beta Service Reports”) to those of its Authorized Users as are necessary for the use expressly and unambiguously licensed hereunder, and only after such Authorized Users have agreed in writing to be bound by confidentiality obligations no less restrictive than those in this Agreement. Customer shall not, without the prior written consent of MikMak, disclose or otherwise make available the Beta Service Reports, Beta Services or copies thereof to any third party. The Beta Services and Beta Service Reports shall be (a) used for Customer’s internal use only, and (b) MikMak’s Confidential Information. The Beta Service Reports are not Performance Data.
- Feedback. MikMak makes the Beta Services available to Customer for purposes of evaluation and feedback without any compensation or reimbursement of any kind from MikMak. Customer hereby agrees to provide such feedback as reasonably requested by MikMak and acknowledges that MikMak owns any feedback provided. Customer grants to MikMak, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such feedback into any MikMak product or service (including the Beta Services) at any time at the sole discretion of MikMak.
- Modification and Termination. MikMak reserves the right to modify or discontinue any aspect of the Beta Services at any time in its sole discretion, for any reason, with or without notice and without liability to Customer. MikMak reserves the right to immediately suspend or terminate Customer’s access to and use of the Services (a) if Customer breaches the terms of the Agreement, this Exhibit B, or any applicable Third-Party Software terms; or (b) if any act or omission of MikMak’s third party licensors negatively impacts MikMak’s ability to provide the Beta Services to Customer; or (c) in its sole discretion at any time. With respect to each Beta Service, these terms will be in effect as of the date of execution of the applicable Order Form and will continue in force until the earlier of (i) the expiration or termination of the Agreement or of the Order Form(s) relating to Beta Service(s), (ii) MikMak’s suspension or termination of the Beta Service(s) in accordance with this Section, or (iii) the date MikMak, in its sole discretion, makes such Beta Service generally publicly available. If MikMak makes the Beta Service(s) generally available, they will be governed by the same terms and conditions as other “Services” under the Agreement (unless otherwise agreed in writing by the parties) and any documentation related to the Beta Services will be “Documentation” under the Agreement. MikMak may in its sole discretion choose to make continued provision of such Services subject to additional fees.
- Warranties. The parties acknowledge that the Beta Services are experimental in nature and that the Beta Services are provided “AS IS” and may not be functional on every machine or in every environment. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIKMAK MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE BETA SERVICES OR DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY MIKMAK HEREUNDER. MIKMAK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE BETA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF THE BETA SERVICES IS AT CUSTOMER’S OWN RISK.
- Indemnification. Customer will defend at its expense any suit brought against MikMak, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) Customer’s use of the Beta Services, and (b) Customer’s breach or alleged breach of its obligations under this Exhibit B.
- Limitation on Liability. IN NO EVENT SHALL MIKMAK BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO OR ARISING FROM THIS EXHIBIT B, AND/OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE, OR OTHERWISE, AND WHETHER OR NOT MIKMAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MIKMAK’s LIABILITY HEREUNDER IS LIMITED TO $50.00.