Master Services Agreement

Last Updated March 22, 2022

BY AGREEING TO AN APPLICABLE SOVRN TERMS & CONDITIONS DOCUMENT, WHETHER BY CLICKING “I AGREE” TO SUCH TERMS AND CONDITIONS, SUBMITTING A PAYMENT FORM, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT CUSTOMER IS BOUND BY THE TERMS OF THIS MSA.

  1. Acceptance. This Master Services Agreement (“MSA“) is incorporated by reference into and, along with the applicable Terms & Conditions document for the specific services Customer (as defined below) is accessing (“Terms & Conditions“) and other documents incorporated by reference are collectively referred to as the (“Agreement“), by and between Sovrn, Inc., a Delaware corporation with its principal place of business located at 5541 Central Avenue, Suite 100, Boulder, CO 80301 (“Sovrn“), and the business entity or person for whom you (“you“) are acting and that will be using the Services (and/or any individual, entity, or successor entity, agency or network acting on Customer’s behalf) (the “Customer“) and sets forth the legally binding terms between Customer and Sovrn that govern the delivery of Services. You represent and warrant that you are entering into this Agreement on behalf of Customer and that you have the authority to bind Customer to this Agreement.
  2. Services. Sovrn will deliver the services to Customer as further defined in the applicable Terms & Conditions, (individually, a “Service,” and collectively, the “Services“) between Customer and Sovrn. The Services are delivered via Customer’s websites, blogs, or other properties approved by Sovrn (collectively, the “Sites“).
  3. Authorization. Customer authorizes Sovrn (a) to deliver the Services, and (b) to use, collect, manage, access, modify, disseminate, make derivative works of, and index the Data (defined below) for the purposes stated in this Agreement. Customer may request to add websites, blogs, or other properties to the Services, and Sovrn hereby reserves its right to approve or deny Customer’s request.
  4. Sovrn’s Relationships. Sovrn has sole discretion to identify, select, and manage relationships with advertisers, merchants, partners and other third parties, establish pricing and other terms and conditions with advertisers, merchants, partners and other third parties, and take all actions relating to the foregoing in order to provide the Services hereunder.
  5. Payment Terms.
    1. Payments to Customer. Sovrn shall pay Customer fees in accordance with the applicable Terms & Conditions, minus any chargebacks. If the amount accrued for the applicable month is less than $50 (USD) for payments by wire or $25 (USD) for all other payments, payment will be deferred until the month in which the cumulative balance owed to Customer exceeds the applicable thresholds or until the Agreement is terminated. Sovrn facilitates payment for Services using a payment dashboard hosted by a third-party vendor where, if applicable, Customer will enter Customer’s payment detail information, tax related information and other related information. At all times, Customer shall be solely responsible for the accuracy of the information provided in connection with Customer’s bank account via the payment dashboard. Customer shall pay any currency conversion fees, or other applicable banking transaction fees, associated with Customer’s use of the payment dashboard, if any.
    2. Payments to Sovrn. In the event Customer owes Sovrn fees under the applicable Terms & Conditions, such payments are due to Sovrn within thirty (30) days following the invoice date. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Customer shall reimburse Sovrn for reasonable expenses and attorneys’ fees incurred by Sovrn in connection with Sovrn’s collection of any late payment. Any deviations from the payment terms in this Agreement will be specified in the applicable Terms & Conditions.
    3. Taxes. All amounts are exclusive of taxes and payable in U.S. dollars only unless otherwise agreed by the parties. Customer shall pay all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed on Customer by any federal, state or local governmental entity in connection with the delivery or Customer’s receipt of the Services.
    4. Chargebacks. Where applicable, Sovrn retains its right to adjust payments due to Customer for: (i) non-payment from or adjusted payments by advertisers, merchants, networks, or agents, (ii) where Sovrn later determines that a prior payment to Customer resulted in an overpayment, (iii) any commission cancellations, reversals, or deductions, including but not limited to, deductions that was determined to include invalid traffic (IVT), or due to a third party’s bankruptcy or insolvency, or (iv) any sale that was identified by the advertisers, merchants, networks or agents as not being a bona fide transaction, whether goods are returned by the customer or otherwise, and advertisers, merchants, networks, or agents may make a chargeback claim requesting certain commissions be canceled or reversed to reflect the fact that the advertisers, merchants, networks, or agents business never benefited from the transaction. Sovrn may reduce the amount of any payment payable to Customer by the amount of any other obligation that is or becomes due and payable by Customer to Sovrn, and Customer shall be deemed to have consented to such reduction. Sovrn will have no obligation to make payments for any amounts that Sovrn, in its sole discretion, deems to have been generated from any Prohibited Activity. “Prohibited Activity” means engaging in any of the following: (1) disseminating Objectionable Content (as defined below); (2) clicking on Customer’s own ads, links, or content, or using any means (automated or manual) to inflate impressions and/or clicks artificially or otherwise generate activity not driven by bona fide human intent; (3) offering a user any inducement of any kind to generate clicks or impressions; (4) forging or misrepresenting any ad request or bid response data, including signals indicating an individual’s instructions for the processing of personal data (5) Installing ad code, affiliate links, or delivering ads on or within 404/error message pages and/or pop-over/pop-under windows, as applicable; or (5) obscuring an advertisement or any portion thereof with other content, advertising or navigational elements. The parties will use commercially reasonable efforts to collaborate on the identification and elimination of any Prohibited Activity.
  6. License. Subject to the Terms & Conditions, Customer may provide Sovrn with certain types of information arising from or related to the Services provided under this Agreement (collectively the “Data“).
  7. Sovrn Data. Any Data that Sovrn aggregates with other data (including Sovrn’s own data, third party data, and data relating to the Sites or the Services), and then disseminates, shall be referred to herein as (“Sovrn Data“).
  8. The Sovrn Platform. If applicable, to enable Customer’s use of or the delivery of Services, Customer may need to create an account in a portal provided by Sovrn to Customer for the provision of Services, which may include a user interface, analytics, dashboard reporting, and other functionalities (the “Sovrn Platform“), and such use is subject to Customer’s creation, and Sovrn’s approval of, Customer’s account (“Account“). Sovrn reserves the right to view, monitor, and/or record activity in Customer’s Account without notice or permission from Customer.
  9. Confidentiality.Confidential Information” of a disclosing party under this Agreement (“Discloser“) means all of the Discloser’s non-public, proprietary or confidential information, including without limitation, the terms of this Agreement. Confidential Information of Discloser shall not be used by the other party hereto (“Recipient“) for any purpose other than performing Recipient’s obligations or exercising Recipient’s rights as contemplated in this Agreement, and subject to the terms of this Agreement, Recipient will not otherwise at any time disclose the Confidential Information of Discloser to any third party without Discloser’s prior written consent. Recipient agrees that it shall treat all Confidential Information of Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient’s obligations under this Agreement with respect to any portion of the Confidential Information shall terminate if and when Recipient can demonstrate that such information: (a) was publicly available at the time it was communicated to Recipient by Discloser; (b) becomes publicly available after it was communicated to Recipient by Discloser through no breach of this Agreement by Recipient; (c) was in Recipient’s possession free of any obligation of confidence at the time it was communicated to Recipient by Discloser; (d) was rightfully communicated to Recipient free of any obligation of confidence subsequent to the time it was communicated to Recipient by Discloser; or (e) was developed by employees or representatives of Recipient independently of and without reference to any of Discloser’s Confidential Information. Notwithstanding the foregoing, Recipient may disclose Confidential Information (i) to the extent required by law or (ii) to its employees, attorneys, accountants, banks and other financing sources and their advisors under an obligation of confidentiality; provider, however, Recipient uses commercially reasonable efforts to provide advance written notice to Discloser of such disclosure and work in good faith with Discloser to procure or obtain any reasonable protections with respect to the Confidential Information. Upon termination or expiration of this Agreement, or upon Discloser’s written request at any time, Recipient shall promptly return to Discloser, or destroy at Discloser’s written request, all documents and other tangible materials representing Confidential Information and all copies thereof.
  10. Warranties; Restrictions.
    1. Mutual Warranties. Each party represents and warrants to the other party that: (i) it holds all rights necessary to perform its obligations hereunder; (ii) all information provided by it to the other party is complete, correct and current; (iii) it will operate in accordance with all applicable privacy policies and all applicable laws, rules, and regulations, including without limitation, applicable privacy and data security laws, rules, and regulations; (iv) it has obtained all licenses, authorizations, approvals, consents or permits required by applicable law to conduct its business generally; (v) it has the full right, power and authority to use all intellectual property used in performing the Services and to grant any rights and licenses set forth in this Agreement; and (vi) it will not infringe the rights of any person or entity in connection with its use, receipt, or delivery of the Services.
    2. Customer Warranties. Customer represents, warrants, and covenants that (i) the Sites are not directed to children under 16 years old and that no porti on of the Data has been or will be collected in connection with any site, application, advertisement or other online service directed towards children under 16 years old, (ii) Customer owns or is otherwise authorized to use, and is solely responsible for, the content posted on any Sites, and (iii) that Customer has, and will continue to have, all rights, titles, licenses, permissions and approvals necessary to grant all rights necessary for Sovrn to perform its obligations hereunder.
    3. Restrictions. Customer shall not: (i) use the Services except as expressly authorized herein; (ii) use the Sovrn Data for any purpose other than internal analytics purposes; (iii) copy, reproduce, modify, distribute, damage, interfere with, disassemble, decompile, reverse engineer or create derivative works of the Services or the Sovrn Data; (iv) breach, disable, tamper with or interfere with the proper working of the Services or the Sovrn Data or develop or use (or attempt) any workaround for any security measure related to the Services or the Sovrn Data; (v) provide to Sovrn any information in the nature of social security, credit card, financial account, credit report, or medical or health information, except as may be specifically requested to register an Account with Sovrn; (vi) provide Sovrn with Data from any device sending any “Limit Ad Tracking” or analogous device platform signal; or (vii) place any content on any of the Sites that contains or promotes Objectionable Content (as defined below). “Objectionable Content” means any content or activity that is: (1) pornographic, illegal, fraudulent, false, deceptive, misleading, libelous, defamatory or threatening, (2) racist, hate speech or bullying, and/or (3) adware, malware, spyware or any other malicious code or drive-by download applications.
  11. Regulatory Compliance Requirements.
    1. Each party agrees to comply with its respective obligations under (i) all applicable privacy laws, rules and regulations, including, without limitation, the California Consumer Privacy Act (“CCPA“), the Regulation 2016/679 (General Data Protection Regulation) (“GDPR“), the GDPR as incorporated into United Kingdom law pursuant to section 3 of the European Union (Withdrawal Act) 2018 (“UK GDPR“), and any implementation of the European Union Directive 2002/58/EC (as modified by Directive 2009/136/EC), and any replacement legislation, the Swiss Federal Act on Data Protection (“Swiss FDPA“), and any other data protection laws of the EEA and its Member States, or any legislation or regulation amending, supplementing or any of the foregoing from time to time (together “EU Privacy Laws“) for any Sites providing content to readers within the European Economic Area or United Kingdom, and  (ii) generally accepted privacy self-regulatory guidelines, such as the principles of the Digital Advertising Alliance (“DAA Self-Regulatory Principles“), including the corresponding DAA Self-Regulatory Principles established in other countries and/or regions, as applicable.
    2. Customer must (i) give consumers any and all notices required under the CCPA at the time of personal information data collection and that this notice, among other things, includes a “Do Not Sell My Personal Information” link for submitting opt-out requests, (ii) maintain and comply with a privacy policy in compliance with applicable law and regulations, including required notice of data collection, use and transfer practices related to the Services, and (iii) comply with the enhanced notice obligations applicable to first parties under the DAA Self-Regulatory Principles, including providing a link from Customer’s privacy policy or the Sites to the DAA YourAdChoices tool and/or the MobileApp Choices tool, as applicable.
    3. The terms of the independent Controller Data Processing Addendum located at https://www.sovrn.com/legal/dpa/controller-controller (“DPA“) is hereby incorporated by reference and will apply to the extent any Data includes Personal Data (as defined in the DPA). The DPA sets out how the parties shall process Personal Data on Customer’s behalf in connection with the Services provided to Customer under this Agreement, including terms addressing lawful data transfers, as applicable.
    4. Customer is solely responsible for reviewing the information made available by Sovrn in its privacy policy (available at https://www.sovrn.com/legal/privacy-policy/) and making an independent determination as to whether the Services and Sovrn’s privacy practices meet Customer’s requirements and legal obligations under applicable laws, rules, regulations, and self-regulatory standards. Customer acknowledges and agrees that Sovrn may collect, use, disclose, and otherwise process any personal information contained in the Data in accordance with its privacy policy and any applicable Terms & Conditions.
  12. Sovrn IP. Customer may be required to access, implement, or use scripts and/or technology provided by Sovrn, including the Sovrn Platform (collectively “Sovrn IP“) to enable Sovrn’s delivery of the Service(s) to Customer. Customer shall use the Sovrn IP as directed by Sovrn, without modification, cover, or obscurity, and only on a property that Sovrn has approved in advance in writing. Upon Sovrn’s written request, Customer must discontinue Customer’s use of the Sovrn IP. Subject to the terms of this Agreement, Sovrn grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable, and royalty free right to access and use the Sovrn IP for the limited purpose of exercising Customer’s rights and performing Customer’s obligations expressly stated in this Agreement. Customer may not and shall not permit any third party to: (a) reverse engineer, decompile or otherwise attempt to discover the Sovrn IP; (b) interfere with the operation of the Sovrn IP; or (c) use the Sovrn IP in any way other than as expressly set forth in this Agreement.  Sovrn retains all right, title and interest in and to the Sovrn IP, including all processes and derivative works and improvements thereto. All rights in and to the Sovrn IP which are not expressly granted to Customer herein are reserved by Sovrn.
  13. Changes to the Services and Sovrn’s Master Services Agreement. Sovrn is constantly changing and improving the Services and the Sovrn IP. Sovrn may limit, suspend, or terminate Customer’s access to or use of the Services or Sovrn IP if Sovrn has a reasonable basis to suspect that Customer’s continued use of the Services or Sovrn IP is likely to damage or cause harm or risk to Customer, Sovrn, the Services, other customers, or end users or their data, devices, or systems. Sovrn may modify this Agreement at any time. Modifications to this Agreement will be posted on the homepage of Sovrn’s website at https://www.sovrn.com or Customer can subscribe to receive notifications of changes to this Agreement by clicking on the RSS feed icon at the top of this page. Changes will not apply retroactively and generally will become effective 14 days after they are posted. However, changes addressing new functions for a Service or made for legal reasons will be effective immediately. If Customer doesn’t agree to any terms in this Agreement, Customer must not use the Services. Customer’s continued use of the Services after the Effective Date of this Agreement or the effective date of any change constitutes Customer’s acceptance of and agreement to follow and be bound by such changes.
  14. Term and Termination. This Agreement is effective as of the date of Customer’s acceptance date or the data when Customer begins using the Services, whichever is earlier (“Effective Date“) and shall continue until terminated by either party upon written notice to the other party; provided, however, this Agreement shall continue to govern each then-existing Terms & Conditions until such agreement is terminated pursuant to its respective terms. If a party materially breaches any of its obligations under this Agreement, the other party may, in addition to its other rights at law or in equity, terminate the applicable Terms & Conditions and this Agreement: (a) immediately upon written notice to the other party of the breach, if the breach is not capable of cure, or (b) on thirty (30) days’ written notice to the other party of the breach, if the other party fails to cure the breach within such thirty (30) day period if capable of cure. Upon termination of this Agreement, except to the extent expressly set forth in this Agreement or the applicable Terms & Conditions: (i) both parties shall remain liable for all accrued and unpaid amounts due under the Agreement; (ii) Customer’s rights to use any intellectual property or data provided to Customer by Sovrn are terminated, including Sovrn IP; and (iii) Customer shall immediately destroy and purge Sovrn IP within Customer’s possession or control. Any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive termination.
  15. Disclaimers.
    1. THE SOVRN SERVICES, INCLUDING ANY TECHNOLOGY, SOFTWARE, CODE, OR OTHER INTELLECTUAL PROPERTY PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED “AS-IS” AND AS AVAILABLE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOVRN EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE TERMS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
    2. Customer is solely responsible for all activities that occur under Customer’s Account and for its use of the Sovrn Platform and Services, including: (i) securing the authentication credentials, systems, and devices Customer uses to access the Sovrn Platform and the Services; and (ii) implementing appropriate security features of the Sovrn Platform, such as multi-factor authentication. Customer shall notify Sovrn immediately of any unauthorized use of Customer’s password, Account, or any other breach of security. To the extent permitted by applicable law, Sovrn hereby disclaims, and shall have no liability or responsibility, for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to, or use of, Customer’s Account and any payments or information flowing therefrom. Where Sovrn incurs any losses based on unauthorized activity caused by or contributed to Customer, its employees, or its agents, Customer will be financially liable for such losses. Sovrn may deduct such losses from Customer’s Account or require Customer to immediately pay such losses to Sovrn.
  16. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party and its agents, affiliates and licensors from and against any and all losses, claims, damages, liabilities and expenses arising from third-party claims or any government or industry investigation, including the reasonable costs of investigation and reasonable attorneys’ fees (collectively, the “Claims“), arising out of or related to the indemnifying party’s breach of any representation, warranty, or covenant, or any other provision of this Agreement, or allegations thereof. Each party’s obligation to indemnify the other party is subject to: (a) the indemnified party giving prompt written notice to the indemnifying party in the event that it becomes aware of any Claims or the possibility of any Claims requiring indemnification; (b) the indemnified party giving full cooperation with the indemnifying party, at the indemnifying party’s expense, in responding to, defending or settling any such Claims; (c) the indemnifying party keeping the indemnified party informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying party, including the decision to defend or not defend the Claims or complaint; (d) the indemnified party not admitting any liability or entering into any settlement regarding the Claims on behalf of the indemnifying party; and (e) the indemnified party giving the indemnifying party sole control of the defense of the Claims and that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claims, including the payment of any award of damages and/or costs to any third party, will be paid by the indemnifying party, provided that no settlement shall be entered into by the indemnifying party that imposes any legal of financial obligation on the indemnified party without the indemnified party’s prior written consent.
  17. Limitation on Liability. Except with respect to either party’s confidentiality, indemnification, and payment obligations, or fraud or willful misconduct, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR (a) ANY COMMERCIAL LOSS OR LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), NOT TO EXCEED THE FEES DUE UNDER THIS AGREEMENT IN A 6 MONTH PERIOD PRECEDING THE CLAIM.
  18. Miscellaneous. Each party will, in all matters relating to this Agreement, act as an independent contractor. Sovrn’s affiliates or subsidiaries may perform some or all of the Services. Customer shall promptly provide all materials, resources, access to systems, or information reasonably requested by Sovrn to provide the Services and understand that Customer’s failure or delay in doing so may impact the delivery of Services; furthermore, Customer shall hold Sovrn harmless from any impact suffered by Customer in connection with such delay. This Agreement, and all disputes relating thereto, shall be governed exclusively by the laws of the State of Delaware, without application of its rules regarding conflicts of laws. Sovrn may use Customer’s logo and brand names to provide the Services and in its marketing materials indicating that Customer is a business partner of Sovrn. Except as expressly contemplated by this Agreement, neither party has, nor will represent that it has, any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision that best approximates the intent and economic effect of the affected provision. Neither party will be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. This Agreement may not be amended except by a writing signed by both parties hereto. Neither party shall assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party; except that a party may assign this Agreement without consent pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this provision will be void. This Agreement is binding upon valid heirs, successors, and assigns. This Agreement and the terms of any applicable Terms & Conditions constitutes the entire agreement between Customer and Sovrn regarding the Services. Sovrn’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement constitutes the entire agreement between Customer and Sovrn and supersedes all prior agreements between Customer and Sovrn with respect to the subject matter herein. Except where otherwise indicated, any notice or communication under this Agreement shall be sent via email (a) if to Customer, to the email address submitted by Customer with Customer’s Account, and (b) if to Sovrn, to legal@sovrn.com.