Spot43 Advertiser Terms of Service

Last Updated: July 15, 2019

These terms of service constitute a legally binding agreement between you and Spot43 LLC (“Spot43,” “we,” “us,” or “our”) governing your use of the Spot43 application, website, devices, and technology platform (collectively, “Platform”). “You” or “your” means you or any other person or entity identified in your account on whose behalf you are authorized to act. For the avoidance of doubt, “you” or “your” means Advertisers and/or agents acting on behalf of an Advertiser (as defined below).

By entering into this agreement, and/or by using or accessing the Spot43 Platform you expressly acknowledge that you understand this agreement and accept all of its terms. If you do not agree to be bound by the terms and conditions of this agreement, you may not use or access the Spot43 Platform.

1. The Spot43 Platform

The Spot43 Platform provides a marketplace where entities seeking to advertise, either directly or through an agency (“Advertisers”), can purchase advertising space from venues that are making a portion of their television(s) available for advertisements (“Hosts”). Advertisers accessing the Spot43 Platform are referred to as “Users,” and each User shall create a User account that enables access to the Platform. As a User, you authorize Spot43 to connect you with a Host based on User preferences, and to cancel existing connections based on the same considerations. For purposes of this agreement, the advertising space made available by Hosts is referred to collectively as “Inventory” and a set of Inventory selected and/or reserved by an Advertiser for a specified start and end date is referred to as “Campaign.” Any decision by a User to purchase Inventory from the Platform is a decision made in such User’s sole discretion. All timing within the Platform and this agreement follows a standard broadcast calendar.

2. Eligibility

The Spot43 Platform may only be used by entities or representatives of entities who can form legally binding contracts under applicable law. The Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.

3. Right to Refuse

Spot43 reserves the right to refuse to accept any User, as a member of the Platform, Campaign, and/or “Advertising Creative” (as defined below), at its sole discretion. Spot43 also reserves the right to remove any previously accepted User, as a member of the Platform, Campaign, and/or “Advertising Creative.”

4. Advertising Creative

Advertising Creative (“Creative”) refers to the digital files provided by an Advertiser to be placed in Inventory.

Approval or rejection. All Creative will be reviewed by Spot43 which may, at its sole discretion, approve or reject. Minimally, Creative must meet all requirements set forth in this agreement, including Section 10 below and the Creative guidelines posted in the Platform. Spot43 will make best efforts to review and respond to Creative submissions within no later than two business days from their submission date. If Creative is rejected, you may revise and resubmit Creative for approval.

Timing. Approved Creative must be attached to a Campaign no later than two business days prior to the Campaign start date. All Creative should be submitted to allow proper timing for the Creative approval process described above. You understand that a rejection response by Spot43 can delay your Campaign commencement, but will not affect the Campaign start date to which you committed.

Right to modify. You understand that Spot43 may need to modify your Creative for the purpose of ensuring fit in Inventory.

5. Advertising Charges

As an Advertiser, you understand that by reserving and purchasing Inventory you are committing to the stated amount due for your selected Inventory and criteria (“Charges”).

Rate. All pricing for applicable Inventory is posted in the Platform (“Rate”), calculated for the criteria you select (as defined below). Rate is calculated for each specific Host Inventory as the respective “Price,” defined as the amount due for one “Advertising Slot” (as defined below), multiplied by the number of Advertising Slots selected and available in a week, summed across each week selected and available. An “Advertising Slot” is one unit of purchasable Inventory of a one-week duration. Spot43 has the authority and reserves the right to determine and modify Price, for which the current and applicable Price will always be reflected in the Platform. Spot43, at our sole discretion, may provide a negotiated or promotional Rate for your Campaign, which will be separately agreed upon in writing and supersedes any pricing in the Platform. Negotiated or promotional Rates may not be reflected in the Platform.

Facilitation of Charges. With the exception of Advertisers authorized for payment by invoice, all charges are facilitated through a third-party payment processing service (e.g., Stripe, Inc.). Spot43 may replace its third-party payment processing services without notice to you. Charges can be made only through the Platform. Your payment of Charges to Spot43 satisfies your payment obligation for use of the Platform and Inventory.

Payment by Invoice. If you have received approval from Spot43 for payment by invoice, upon your confirmation and commitment of Charges in the Platform, an invoice will be sent to your email address on file for all applicable Charges. You agree to complete payment for Charges as per the payment instructions sent with the invoice.

No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Platform, request for Campaign cancellation, or any other reason whatsoever

Credits. Spot43, in its sole discretion, may issue you credits to Charges for reasons preventing full delivery of your purchased Inventory (“Credits”). Credits will be determined based solely on reporting and calculations done by Spot43 and will be deemed final.

6. Spot43 Communications

By entering into this agreement or using the Spot43 Platform, you agree to receive communications from us, including via e-mail, text messages, and calls. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Spot43 and its affiliated companies may include: operational communications concerning your User account or use of the Platform or Inventory, updates concerning new and existing features on the Platform, communications concerning promotions run by us or our third-party partners, and news concerning Spot43 and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.

If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself.

7. Measurement

Spot43 will provide reporting of metrics to Users through the Platform and outside of the Platform.

Metrics. All metrics, including reach and impressions, are provided in the Platform and in any reporting, whether within or outside the Platform, based on the Spot43 measurement policies in effect at that time. Unless otherwise specified: (1) all metrics provided by Spot43 are the definitive measurements of Spot43’s performance and (2) no other measurements will be accepted by Spot43 or have any effect on payment.

Reporting. Spot43 will make commercially reasonable efforts to deliver reporting, whether within or outside the Platform, in accordance with industry standards, but Spot43 does not warrant the accuracy of these reports and does not guarantee that these reports are free of errors.

8. Your Information

Your Information is any information you provide, publish or post to or through the Platform (including any profile information you provide), provide to Spot43 outside of the Platform, or send to other Users (including via in-application feedback, any email feature, or through any Spot43-related Facebook, Twitter or other social media posting) (“Information”). You consent to us using your Information to create a User account that will allow you to use the Platform and list or access Inventory. Our collection and use of personal information in connection with the Platform and Inventory is as provided in Spot43’s privacy policy located at www.spot43.com/privacy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current, and complete Information and that we and other Users and Hosts may rely on your Information as accurate, current, and complete. To enable Spot43 to use your Information for the purposes described in the privacy policy and this agreement, You grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information, and to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Spot43 does not assert any ownership over your Information; rather, as between you and Spot43, subject to the rights granted to us in this agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.

You may be able to create or log-in to your Spot43 User account through online accounts you may have with third party sites (each such account, an "3P Account"). By connecting to Spot43 through a 3P Account, you understand that Spot43 may access, store, and make available any 3P Account content according to the permission settings of your 3P Account (e.g., friends, mutual friends, contacts or following/followed lists (the “3P Content”)). You understand that 3P Content may be available on and through the Platform to other Users. Unless otherwise specified in this agreement, all 3P Content, if any, will be considered to be your Information.

9. Campaign Cancellation

Any requests to cancel a campaign must be done through the Platform or in writing to Spot43. We will make best efforts to remove the campaign from Inventory within two business days of our receipt of your request.

10. Restricted Activities

With respect to your use of the Platform and your participation in Inventory, you agree that you will not:

  1. impersonate any person or entity;

  2. violate any law, statute, rule, permit, ordinance, or regulation

  3. interfere with or disrupt the Platform or the servers, networks, or devices connected to the Platform

  4. post information or interact on the Platform in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;

  5. use the Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy;

  6. post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data, or personal information;

  7. “frame” or “mirror” any part of the Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other website for any purpose;

  8. modify, adapt, translate, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Platform or any software used on or for the Platform;

  9. rent, lease, lend, sell, redistribute, license, or sublicense the Platform or access to any portion of the Platform;

  10. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Platform or its contents;

  11. transfer or sell your User account, password and/or identification to any other party

  12. discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age, or sexual orientation, or

  13. cause any third party to engage in the restricted activities above.

11. Intellectual Property

All intellectual property rights in the Platform are owned by Spot43 absolutely and in its entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Spot43. Spot43 will own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

Spot43 and other Spot43 logos, designs, graphics, icons, scripts and service names are trademarks or trade dress of Spot43 in the United States (collectively, the “Marks”). If you purchase Inventory as an Advertiser, Spot43 grants to you, during the term of this agreement, and subject to your compliance with the terms and conditions of this agreement, a limited, revocable, non-exclusive license to display and use the Marks solely in connection with your purchase of Inventory through the Platform (“License”). The License is non-transferable and non-assignable, and you may not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Spot43’s prior written permission, which it may withhold in its sole discretion. The Marks may not be used in any manner that is likely to cause confusion.

You acknowledge that Spot43 is the owner and licensor of the Marks, including all goodwill associated with them, and that your use of the Marks will confer no additional interest in or ownership of the Marks in you but rather inures to the benefit of Spot43. You agree to immediately cease any use that Spot43 determines to be nonconforming or otherwise unacceptable.

You agree that you will not: (1) create any materials that use the Marks or any derivatives of the Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Spot43 in writing; (2) use the Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Spot43’s rights as owner of the Marks or the legality and/or enforceability of the Marks, including, challenging or opposing Spot43’s ownership in the Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Marks, any derivative of the Marks, any combination of the Marks and any other name, or any trademark, service mark, trade name, symbol or word that is similar to the Marks; (5) use the Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.

Violation of any provision of this License may result in immediate termination of the License, in Spot43’s sole discretion. If you create any materials bearing the Marks (in violation of this agreement or otherwise), you agree that upon their creation Spot43 exclusively owns all right, title and interest in and to such materials, including any modifications to the Marks or derivative works based on the Marks. You further agree to assign any interest or right you may have in such materials to Spot43 without compensation, and to provide information and execute any documents as reasonably requested by Spot43 to enable Spot43 to formalize such assignment.

Spot43 respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Platform or Inventory infringe upon your copyrights, please send a copyright complaint to Spot43 in writing.

12. Disclaimers

The following disclaimers are made on behalf of Spot43, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.

The Platform is provided on an “as is” basis and without any warranty or condition, express, implied, or statutory. We do not guarantee and do not promise any specific results from use of the Platform and/or the Inventory. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

We do not warrant that your use of the Platform or Inventory will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Platform will be corrected, or that the Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Platform or Inventory.

We do not accept responsibility or liability for any content, communication or other use or access of the Platform by any User or Host in violation of this agreement. Spot43 is not responsible for the conduct, whether online or offline, of any User or Host of the Platform or Inventory. You are solely responsible for your interactions with other Users or Hosts. By using the Platform and participating in Inventory, you agree to accept such risks and agree that Spot43 is not responsible for the acts or omissions of Users or Hosts on the Platform or participating in Inventory.

You are responsible for the use of your User account and Spot43 expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.

It is possible for others to obtain information about you that you, either directly or through Spot43, provide, publish or post to or through the Platform (including any profile information you provide), or send to other Users or Hosts, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Hosts or Users on the Platform or through Inventory. Please carefully select the type of information that you post on the Platform or through the Inventory or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”) or Hosts.

Opinions, advice, statements, offers, or other information or content concerning Spot43 or made available through the Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users, Hosts, or others.

Location data provided by the Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed. Neither Spot43, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Platform may be accessible to Spot43 and Users of the Spot43 Platform.

13. Indemnity

You will defend, indemnify, and hold Spot43 including our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Platform and participation in Inventory, including: (1) your breach of this agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Hosts and Advertisers, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Inventory. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.

14. Limitation of Liability

In no event will Spot43, including our affiliates, subsidiaries, parents, successors, and assigns, and each of our respective officers, directors, employees, agents, or shareholders (collectively “Spot43” for purposes of this section), be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the Platform, Inventory interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the Platform, the Services, or this agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages. The Platform may be used by you to search for and purchase advertising with Hosts, but you agree that Spot43 has no responsibility or liability to you related to any inventory provided to you by Hosts other than as expressly set forth in this agreement. Certain jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights. except as explicitly stated herein, Spot43’s entire aggregate liability under or relating to this agreement for any reason(s) or any cause(s) of action whatsoever, cannot exceed the amounts received by Spot43 from you under this agreement in connection with which the liability arose.

15. Term and Termination

This agreement is effective upon your creation of a User account. This agreement may be terminated: a) by User, without cause, upon seven days’ prior written notice to Spot43; or b) by either party immediately, without notice, upon the other party’s material breach of this agreement, including but not limited to any breach of Section 10 of this agreement. In addition, Spot43 may terminate this agreement or deactivate your User account immediately in the event that Spot43 has the good faith belief that such action is necessary to protect the integrity of the Platform and Inventory, provided that in the event of a deactivation pursuant to the above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Spot43’s reasonable satisfaction prior to Spot43 permanently terminating the agreement. For all other breaches of this agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured within two weeks and to Spot43’s satisfaction, this agreement will not be permanently terminated. Sections 6, 8 (with respect to the license), and 11-18 shall survive any termination or expiration of this agreement.

16. Confidentiality

You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Spot43’s business, operations and properties, information about a User or Host made available to you in connection with such User or Host’s use of the Platform, which may include the User or Host’s name, address, contact information and any other profile information (“Confidential Information”) disclosed to you by Spot43 for your own use or for any purpose other than as contemplated herein. You must not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Spot43 in order to prevent it from falling into the public domain. Notwithstanding the above, you will not have liability to Spot43 with regard to any Confidential Information that you can prove: was in the public domain at the time it was disclosed by Spot43 or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Spot43; becomes known to you, without restriction, from a source other than Spot43 without breach of this agreement by you and otherwise not in violation of Spot43’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Spot43 to enable Spot43 to seek a protective order or otherwise prevent or restrict such disclosure.

17. Modification of the Agreement

In the event Spot43 modifies the terms and conditions of this agreement, such modifications will be binding on you only upon your acceptance of the modified agreement. Spot43 reserves the right to modify any information referenced in the hyperlinks from this agreement from time to time, and such modifications will become effective upon posting. Continued use of and participation in the Platform and Inventory after any such changes constitutes your consent to such changes.

18. General

This agreement is to be governed by the laws of the State of Washington without regard to choice of law principles. This choice of law provision is only intended to specify the use of Washington law to interpret this agreement and is not intended to create any other substantive right to non-Washingtonians to assert claims under Washington law whether by statute, common law, or otherwise. If any provision of this agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this agreement. You agree that this agreement and all incorporated agreements may be automatically assigned by Spot43, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Spot43 must be sent to support@spot43.com. Any notices to you will be provided to you through the Platform or given to you via the email address or physical address you provide to Spot43 during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This agreement sets forth the entire understanding and agreement between you and Spot43 with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

If you have any questions regarding the Platform or Inventory, please contact our customer support team at support@spot43.com.