Customer Agreement
- TERMS & CONDITIONS OF SERVICE
- ACCEPTABLE USE POLICY
- SERVICE LEVEL AGREEMENT (SLA)
- DATA PROCESSING ADDENDUM (DPA)
- APPENDIX A - Data Processing Instructions
- APPENDIX B - Sub-processors
- Dynamic Ads
TERMS & CONDITIONS OF SERVICE
1) DEFINITIONS
a) “Agreement” means the entire agreement between streamB and the Customer for the Services, including these TCs, the SLA, the AUP and the DPA.
b) “AUP” means the Acceptable Use Policy as detailed in the Portal, as may be amended from time to time by streamB.
c) “Billing Start Date” means the commencement date for billings, being the date on which the Customer first subscribes for Services.
d) “Business Day” means Monday to Friday, excluding statutory holidays in the Province of Ontario.
e) “Customer” means the Customer’s legal entity associated with the customer identification field in the Portal.
f) “Customer Equipment” means all of the Customer’s hardware, software, and network infrastructure equipment used in connection with the Services and which is not supplied by streamB or its Third-Party Suppliers.
g) “Customer Content” means any and all information, files, images, videos or other content posted by the Customer, Employees or End Users, stored or displayed on streamB and Third-Party Suppliers networks or other interconnected network facilities, and/or the Portal.
h) “Customer Premises” means any physical location where Customer Equipment is located.
i) “Customer Streaming Content” means all audio encoded and/or streamed by streamB to be made accessible to End Users on streamB and Third-Party Suppliers networks or other interconnected network facilities.
j) “Customer Stations” means the audio streams that comprise the Customer Streaming Content, as identified in the Portal.
k) “Content” means Customer Content and Customer Streaming Content.
l) “Design Work” means all written materials embodying the design(s) created by streamB for the Customer during the Term.
m) “Downtime” means the total number of minutes in a calendar month period during which the Customer Streaming Content is not available to End Users (excluding the total number of minutes in a month of shutdown, failure or deficiency caused by or associated with any of the circumstances enumerated in Section 4(b) of these TCs), divided by the total number of minutes in a month, expressed as a percentage.
n) “DPA” means the Data Protection Agreement as detailed in the Portal, as may be amended from time to time by streamB.
o) “Employees” means the Customer’s employees authorized by Customer to access the Services.
p) “End Users” means the Customer’s customers, visitors, listeners or viewers using any of the Customer’s applications in respect of which streamB is providing the Service.
q) “Force Majeure” means any event or circumstances beyond the reasonable control of a Party, such as widespread disease, epidemic, pandemic, quarantine, government actions, sabotage, embargo, fire, flood, strike, riot, or other civil or labor disturbance, or an act of terrorism or war.
r) “Material Breach” has the meaning ascribed to it in Section 6(a) of these TCs.
s) “Network” means all computer equipment, server, network equipment, network interconnection, other network devices or points of presence.
t) “Party” means the Customer or streamB, and “Parties” means both of them, and each Party shall be deemed to include all persons for whom such Party is responsible in law, including its affiliates and their respective directors, officers, agents, representatives, contractors and employees.
u) “Portal” means the online application used by Customers to access and manage the Services provided by streamB.
v) “Proprietary Materials” means any and all encoders owned by and supplied by streamB, downloaded by the Customer and used to deliver the Service, which encoders are listed in the Portal. Proprietary Materials shall not include any such encoders sold to the Customer or owned by the Customer.
w) “Service(s)” means any and all the “streamB” products and services for which the Customer subscribes, as specified on the Portal, to be provided by streamB to the Customer under the Agreement.
x) “Service Fees” means any and all charges for the Service as identified in the Portal.
y) “SLA” means the Service Level Agreement as detailed in the Portal, as may be amended from time to time by streamB.
z) “streamB” means leanStream Inc.
aa) “Subscription” means the Customer’s subscription for Services.
bb) “Systems” means the combination of software, hardware and network infrastructure bundled by streamB to provide the Service.
cc) “TCs” means these Terms and Conditions of Service.
dd) “Technical Support” means technical assistance from streamB for technical questions or problems with the use of the Service.
ee) “Technology(ies)” means all proprietary technology, such as computer programs and code (literal and non-literal elements), software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), design, structure, know-how, business methods, and any related intellectual property rights throughout the world (whether owned or licensed from a third party).
ff) “Term” means the duration of a Subscription.
gg) “Term Start Date” means the date the Agreement takes effect as identified in the Portal.
hh) “Third-Party Suppliers” means third-party service providers, representatives or subcontractors authorized by streamB or Customer.
ii) “Uptime” means the total number of minutes in a calendar month period during which the Customer Streaming Content is available to End Users (including the total number of minutes in a month of shutdown, failure or deficiency caused by or associated with any of the circumstances enumerated in Section 4(b) of these TCs), divided by the total number of minutes in that month, expressed as a percentage.
2) SERVICE
a) Services. streamB will provide the Customer with the Service, subject to all the terms and conditions of the Agreement. streamB may perform its obligations through its Third-Party Suppliers, but this shall not release streamB from its obligations under the Agreement. The Service shall commence as of the Term Start Date specified in the Portal.
b) Networks. streamB and/or its Third-Party Suppliers will provide, manage and maintain from their Networks, the server hardware, operating system, applications server, database management system, software applications and bandwidth that allow the Customer Content and the Customer Streaming Content to be accessible by End Users.
c) Non-streamB Equipment, Software and Operating Systems. streamB assumes no liability for any Customer Equipment or third-party equipment, software or operating systems, except to the extent any third-party equipment, software or operating system is used by streamB or its Third-Party Suppliers for the purpose of providing the Service. The Customer is entirely responsible for: 1. the Customer Equipment, 2. all third-party equipment, software and operating systems not used by streamB or its Third-Party Suppliers, and 3. any data, functionality or inter-operability with other hardware, applications and operating systems. The Customer is responsible for obtaining technical support for the Customer Equipment directly from the applicable vendor. Service shall not include support for problems arising from attempted or actual modification, alteration or addition of equipment, software and operating systems not undertaken by streamB.
d) Non-streamB Multimedia and Application Players. streamB does not assume any liability whatsoever associated with the Customer’s or third party's use of any and all multimedia and application players developed by a third party in connection with the Services. The Service shall not include support for problems arising out of any third party’s multimedia or application player.
3) FEES
a) Fees. The Customer agrees to pay the applicable Service Fees set forth in the Portal for the Services, together with all then applicable taxes for the Service provided. streamB may increase the Service Fees at any time, by notice to the Customer at least 30 days before the next billing date.
b) Billing and Payment. streamB will bill the Customer monthly, at the beginning of each calendar month for Services provided during the preceding month, commencing from the Billing Start Date. The amounts invoiced are payable as of the date of the invoice. If an invoice remains unpaid upon completion of the “Payment Terms” time period specified in the Portal , the amount invoiced shall accrue interest at the annual rate of 18% on the amount due (which shall include principal and all prior interest accrued but unpaid) or the maximum amount allowed by applicable law (whichever is less), until fully paid.
c) Cumulative Remedies. Termination of the Agreement and/or collection of interest shall not prejudice any other rights or remedies that may be available to streamB with respect to any nonpayment of applicable Service Fees.
d) Customer Additions and Cancellations. Customer additions or cancellations of Services under a Subscription will be reflected in invoicing for the calendar month of the addition or cancellation (e.g.: a new Service added on May 15th will be billed as of May 15th).
e) Technical Support Service Fees. The Customer agrees and understands that streamB will charge the Customer additional fees, on a time and material basis in accordance with streamB’s then standard rate, for all Technical Support streamB provides to repair errors, faults or other operational or security problems, attributable to:
i) hardware that is owned, leased or provided to streamB by the Customer, or any operating systems, applications or code that are owned, licensed or provided to streamB by the Customer, or the interaction of these items;
ii) willful or negligent acts or omissions by the Customer or others engaged or authorized by the Customer or use of streamB’s Network or Services in breach of the Agreement; or
iii) Customer Equipment.
f) Hourly Rate. As of the Term Start Date, streamB’s standard rate for Technical Support is $145.00 per hour. Except as otherwise agreed by the Parties, streamB shall not be obligated to provide Technical Support in any of the circumstances enumerated in this Section 3(e).
g) Disputes. If the Customer wishes to dispute an invoice in good faith, the Customer must first pay the undisputed portion of the invoice and submit a written claim for the disputed amount, documenting the basis of its claim. All claims must be submitted to streamB within thirty (30) days of the billing date.
4) SERVICE CREDITS
a) Credit. Service credits will be granted for any failure to meet the Uptime guarantee specified in the SLA. In the event that streamB fails to meet the Uptime guarantee as specified in the SLA during any calendar month, the Customer shall receive (as its sole remedy, except for the remedy for Material Breach) a service credit as detailed in the SLA.
b) Exclusions. No service credits will be granted for any failure or deficiency beyond the reasonable control of streamB, including any failure or deficiency caused by or associated with:
i) failure of the equipment, applications, code or operating systems that are owned, licensed or provided by the Customer to streamB, or the interaction of these items;
ii) domain name server issues outside the reasonable control of streamB;
iii) the Customer’s acts or omissions (or act or omissions of others engaged or authorized by the Customer), including any negligence, wilfulness, or use of streamB’s Network or the Service in breach of the Agreement;
iv) buffering associated with general conditions outside of streamB’s Network;
v) failure of access circuits to streamB’s Network, except to the extent that such failure is caused by streamB;
vi) routine maintenance and scheduled upgrades as contemplated in Section 12 of these TCs, or as requested by Customer;
vii) the Customer Equipment;
viii) false Downtime incident report, including as a result of outages or errors of any streamB measurement system; or
ix) failure of a service feature/element that does not result in a Downtime incident for any Customer Stations; or
x) increase in simultaneous End Users for a Customer Station(s) to a level more than 50% above the average number of simultaneous End Users across such Customer Station(s), for the three-month period immediately preceding such increase.
c) Claim Procedure. All service credit requests must be made in writing and emailed to care@streamB.net. To be eligible for a credit, any request must be received by streamB within thirty (30) days of the end of the calendar month during which occurred the failure to meet the Uptime guarantee, and must be confirmed by streamB’s own measurements of the streamB Network at the relevant time(s). To perfect claims, the Customer has a positive obligation to specify in all requests:
i) the name, phone number and current email address of the Customer’s applicable representative;
ii) the date and beginning and end times of the Downtime incident or failed metric; and
iii) a brief description of the Downtime incident or failed metric.
d) Credits. All approved credits will be applied to Service Fees owing under the Customer’s account, within sixty (60) days of receipt of the claim and completion of verification by streamB.
If at the end of the Term, there are any unused credits in the Customer’s account, streamB shall refund an equivalent amount to the Customer.
e) Limitations. Notwithstanding anything to the contrary in the Agreement, credits shall be available only with respect to the specific Services affected. For example, a Downtime incident that affected only one Customer Station shall not result in credit for the other Customer Stations that remain available. In order to be eligible for credit, the Customer must have followed, prior to the incident in question, streamB’s latest instructions (if any) for using streamB Systems. streamB will periodically provide updated instructions for such Systems in accordance with the notice requirements of Section 18 of these TCs. Service credits shall not be available to the Customer should it be in Material Breach under the Agreement.
5) TERM
The Term shall begin as of the initial date of addition of Service under a Subscription and shall continue until the date of cancellation of the remaining Service under the Subscription.
6) TERMINATION
a) Material Breach. Either Party may terminate the Agreement or suspend all or part of the Service, for a Material Breach by the other Party of the Agreement, by sending the other Party twenty (20) days’ notice, and, absent rectification of such Material Breach within that period, the Agreement will terminate. Upon termination, any amount due to streamB for Services rendered shall become immediately due and payable. If streamB terminates the Agreement for Material Breach by the Customer, for monthly Services the Customer will be required to immediately pay to streamB a lump sum equal to the aggregate of all the charges for the calendar month in which the effective date of termination falls, prorated for the remaining days of such month, which the Customer acknowledges streamB is entitled to receive by way of liquidated damages, not as a penalty.
A “Material Breach” shall include:
i) non-payment by the Customer of the undisputed portion of any invoice, by the end of the time period of the “Payment Terms” specified in the Portal;
ii) failure by streamB to satisfy the Uptime guarantee for three (3) consecutive calendar months;
iii) violation by the Customer of the AUP;
iv) material breach by either Party of its warranties or representations or covenants contained in Section 15 of these TCs; or
v) conduct of business in a manner that damages the business reputation of the other Party.
b) Bankruptcy. Either Party may terminate the Agreement immediately on notice if the other Party:
i) enters into, makes or becomes subject to:
(1) liquidation, trusteeship or receivership,
(2) bankruptcy or insolvency,
(3) an arrangement with creditors or an assignment for benefit of creditors,
(4) a seizure of business or assets, or
(5) execution, court order, distress or similar process;
ii) is unable to pay its debts as they become due;
iii) seeks relief under any insolvency statute, including legislation providing for protection from creditors; or
iv) ceases to carry on business.
c) Force Majeure. The Customer may terminate the Agreement upon ten (10) days’ notice to streamB, if a Force Majeure event prevents the delivery of the Service for more than sixty (60) consecutive days.
d) Effect of Termination. Upon termination, streamB shall return all Customer Content, and all Customer Streaming Content, and Customer shall uninstall all Proprietary Materials, within ten (10) Business Days after the effective date of termination. The following provisions of these TCs shall survive termination of the Agreement: 1 (Definitions), 16 (Limitations of Liability), 17 (Indemnification), 23 (Confidentiality), 25 (Governing Law and Jurisdiction) and 26 (General Terms).
7) ADDITIONAL SERVICES
At any time during the Term of the Agreement, the Customer may send a request for additional Services not specified in the Portal. streamB shall not proceed with any additional Service until both Parties have agreed to a written scope of work for the additional Services, the applicable costs, schedules and an analysis of the impact the changes may have on the Agreement. The Parties will sign contract for the additional Services, which shall be governed by and be merged into the Agreement. Except as otherwise agreed by the Parties, neither Party has any obligation with respect to any request for additional Services.
8) ACCEPTABLE USE POLICY
The Customer shall ensure that all of its authorized users comply at all times with the AUP. streamB may at any time amend the AUP, and each amendment will become binding on the Customer upon notice of such amendment by streamB to the Customer.
9) CONTENT
a) License. The Customer grants streamB a limited, non-exclusive license to copy, perform and display the Content as necessary to provide the Service pursuant to the Agreement. No other rights or interests are granted by the Customer to the Content.
b) No Control or Monitoring. The Customer acknowledges that streamB does not monitor or control the Content or the access to or use of the Content by the End Users.
c) Customer Responsibility. The Customer assumes full responsibility for the Content submitted to streamB for transcoding and/or posting to streamB’s servers. The Customer represents that it has the requisite rights to the Content submitted to streamB to enable streamB to provide the Services.
10) THIRD-PARTY SUPPLIERS
If at any time streamB connects the Customer to any Third-Party Supplier, and the Customer subsequently contracts directly or indirectly (including through streamB) with such Third-Party Supplier, no such action by streamB shall constitute an endorsement of, or a representation or warranty as to, such Third-Party Supplier‘s product or service or the capabilities thereof, and streamB does not assume any liability whatsoever associated with the Customer’s or any other person’s use of such Third-Party Supplier product or service. For greater certainty, the foregoing disclaimer shall not apply to Third-Party Suppliers or their products or services to the extent that streamB provides Services through Third-Party Suppliers, as contemplated in Section 2of these TCs.
11) SERVICE LEVELS AND TECHNICAL SUPPORT
a) Service Level Agreement. streamB shall commit the required personnel and resources to supply the Services subscribed to by the Customer in accordance with the service levels detailed in the SLA. streamB may at any time amend the SLA, and each amendment will become binding on the Customer upon notice of such amendment by streamB to the Customer. streamB represents and warrants that it possesses or has made commercially reasonable efforts to select Third-Party Suppliers that possess the knowledge, skill, capacity and experience necessary to provide the Services under the Agreement.
b) Technical Support. streamB agrees and undertakes to provide the Customer with Technical Support according to the terms and conditions of the SLA. No Technical Support, assistance or troubleshooting will be provided by streamB to the End Users except as mutually agreed upon between streamB and the Customer.
c) Access to Customer Premises. Contingent upon streamB or its Third-Party Suppliers observing Customer's security and/or IT procedures, protocols, and policies, the Customer will give streamB or its Third-Party Suppliers reasonable access to the Customer Premises as may be required to enable streamB to perform its obligations under the Agreement. A Customer representative shall accompany streamB or its authorized Third-Party Supplier when attending the Customer Premises for such purposes.
12) MAINTENANCE, SECURITY, BACKUPS
a) Availability of Servers. The Customer understands and agrees that the Services, including streamB’s and its Third-Party Suppliers’ servers, may be unavailable from time to time due to:
i) equipment malfunctions,
ii) periodic maintenance or repairs, or
iii) other causes beyond the reasonable control of streamB.
b) Service Credits. In case of such unavailability, the Customer will be entitled to service credits in accordance with Section 4(c) of these TCs except in the case of exclusions set out in Section 4(b) of these TCs.
c) Maintenance and Upgrades. streamB will notify the Customer three Business Days in advance of disruptions to Services due to routine maintenance windows or scheduled upgrades, with the exception of Services provided by Third-Party Suppliers. streamB will notify the Customer of disruption to Services resulting from streamB’s Third-Party Supplier services, maintenance and upgrades as they are announced. streamB will make commercially reasonable efforts to provide, and to cause its Third-Party Suppliers to provide, routine maintenance and upgrades between 1 AM and 4 AM ET.
d) The Customer’s Responsibility. The Customer assumes full responsibility for making its own separate backup copy of any Content or other information posted to streamB’s servers. streamB will not be responsible for lost materials, data or information under any circumstances. Additionally, the Customer is responsible for testing any changes that streamB makes at the Customer’s request, to the Content or in the provision of the Service, to make sure that such changes have met the Customer’s request.
e) Security. The streamB architecture meets or exceeds applicable industry standards and best practices for the security of its Network but the Customer acknowledges that delivery of the Services through the World Wide Web are subjected to inherent risks. streamB is not liable for any breach of security that is not caused by willful or negligent act or omission on the part of the streamB or its Third-Party Suppliers.
13) OWNERSHIP
a) Intellectual Property in Technology. Each Party acknowledges that the other Party’s Technology, and in the case of streamB its Proprietary Materials, and all related information is proprietary to it, and it owns all rights, title and interest to its own intellectual property. No ownership rights are acquired through licensed usage of each other’s intellectual property. Neither Party shall, directly or indirectly:
i) attempt to determine source code for computer programs owned by the other Party or licensed to the other Party from a third party;
ii) modify, create derivative works from, reprogram, translate, disassemble, decompile, or otherwise reverse engineer the Technology of the other Party, or in the case of streamB its Proprietary Materials; nor
iii) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on or in any Technology of the other Party, or in the case of streamB its Proprietary Materials.
b) Intellectual Property in Design and Custom Art Work Development. All custom development Services to be provided by streamB to the Customer, and all programming or systems Design Work, shall be owned by streamB unless there is a written agreement to the contrary between the Parties.
c) Proprietary Materials. The Customer acknowledges that all Proprietary Materials and all related information are proprietary to streamB and that all rights thereto are owned by streamB. The Customer shall at all times ensure that the Proprietary Materials supplied by streamB and installed at the Customer’s location are kept and maintained under conditions which are consistent with the specifications of streamB, which specifications are set out in the Support section of the Portal. streamB may from time to time change such specifications, provided however that streamB may not, without the Customer’s consent, make any change that might have any material adverse effect on the Customer.
14) CUSTOMER EQUIPMENT
During the Term, the Customer agrees and undertakes to:
a) ensure that the Customer Equipment is installed and maintained in accordance with any applicable industry standards and best practices;
b) ensure that the Customer Equipment is compatible with the Service and does not interfere with or otherwise degrade streamB’s Network or Proprietary Materials;
c) assume liability for all losses, risks and damage to the Customer Equipment except to the extent caused by streamB or its Third-Party Supplier’s willfulness or negligence; and
d) supply all the infrastructure, such as electrical outlets, grounding devices, and an anti-static environment required for the efficient and safe operation and maintenance of the Customer Equipment.
15) REPRESENTATIONS AND WARRANTIES, AND COVENANTS
a) Common Representations and Warranties. Each Party represents and warrants that:
i) it has the necessary corporate power, authority and capacity to perform its obligation under the Agreement and its entry into the Agreement has been duly authorized by all necessary corporate action on its behalf; and
ii) the Agreement is a valid and binding obligation enforceable against such Party in accordance with its terms, subject to:
(1) bankruptcy, insolvency, moratorium, reorganization and other laws relating to or affecting the enforcement of creditors’ rights generally, and
(2) the fact that equitable remedies, including the remedies of specific performance and injunction, may only be granted in the discretion of a court.
b) Customer Representations. The Customer hereby represents and warrants that:
i) it holds the requisite copyright and trademark licenses and/or other intellectual property rights for the Content;
ii) the rights delegated to streamB under the Agreement, in particular the reproduction of the Content on streamB’s Network, will not violate or infringe upon the copyright, literary, privacy, publicity, trademark, service mark or any other personal or property right of any person or entity.
c) streamB Covenants and Representations. streamB hereby covenants that it shall comply with all applicable laws and safety rules in the course of performing the Services, and represents that the streamB Technologies, and the use by the Customer of any of the Services, will not and do not violate or infringe on the intellectual property rights of any third party.
d) Disclaimer of Warranties. Except for warranties expressly made in the Agreement, the Customer acknowledges and agrees that:
i) all service provided by streamB are provided "as is"; and
ii) streamB disclaims any and all other warranties or representations of any kind, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability, satisfactory quality and fitness for a particular purpose, availability, or reliability of the Service or any Proprietary Materials.
16) LIMITATION OF LIABILITY
a) Damages. Notwithstanding any other provision in the Agreement, neither Party shall be liable for any indirect damages, howsoever caused, including any lost revenues or profits, loss of business value, loss of business opportunity, lost savings, loss of use or lack of availability of facilities including computer resources, routers and stored data, special, incidental, punitive, exemplary, aggravated, economic or consequential damages, whether:
i) arising out of the use, or inability to use, the Services or the Proprietary Materials;
ii) arising from actual or alleged breach of the Agreement; and
iii) the Party from which damages are being sought had been advised of, had knowledge of, or reasonably could have foreseen the possibility of such damages.
b) Limitations. In no case will streamB's total liability be for more than the amount paid by the Customer under the Agreement during the six (6) months prior to the date of the claim for damages arising.
17) INDEMNIFICATION
a) Indemnification. Subject to the limitations of liability in Section 16 of these TCs, each Party will hold harmless, indemnify, and defend the other Party in respect of all claims, demands or actions (including by third parties) for losses, damages, liabilities, penalties, costs and expenses (including legal fees on a full-indemnity basis) arising from a breach of such first Party’s representations, warranties and covenants under the Agreement.
In the event of a third-party claim, demand or action for which a Party seeks indemnification, the indemnified Party will:
i) notify the indemnifying Party in writing of the claim, demand or action;
ii) grant the indemnifying Party sole control of the defense and settlement of the claim, demand or action; and
iii) provide the indemnifying Party with all assistance, information and authority reasonably required for the defense and settlement of the claim, demand or action, at the indemnifying Party’s expense.
b) Settlement. Any settlement of a third-party claim, demand or action that results in any ongoing liability that detrimentally impacts the rights of the indemnified Party will require the consent of the indemnified Party, which shall not be unreasonably withheld.
c) Sole Remedy. The indemnification provisions set out in this Section 17 are the sole remedy available to the indemnified Party in connection with:
i) third-party claims, demands or actions; and
ii) with the exception of the right to service credits and termination rights, any breach by the indemnifying Party of its representations, warranties and covenants under the Agreement.
18) NOTICES AND REQUESTS
a) Notice. Except as otherwise expressly stated in the provisions of the Agreement, any notices and requests provided for in the Agreement shall be:
i) in writing;
ii) sent by email (with proof of reception), prepaid courier or registered mail to the other Party;
iii) for notices or requests to the Customer, sent to the address and to the attention of the contact person indicated on the Portal or any other person listed as an authorized contact in streamB’s system; and
iv) for notices or requests to streamB, sent to 25 Markham Road, Toronto, ON M1M 2Z5.
b) Account Information. The Customer agrees and undertakes to keep the account information up to date with streamB at all times during the Term, including the address, telephone number, email address, contact name, and a current list of authorized personnel with permission to access the account information.
c) Deemed Receipt. Notices and requests sent by courier shall be deemed received on the next Business Day. Notices and requests sent by registered mail shall be deemed received on the fifth Business Day following mailing. Notices sent by electronic mail shall be effective and deemed received only upon electronic confirmation of receipt by the other Party. All notices and requests which do not comply with these conditions shall be held incomplete or invalid.
19) LICENSE GRANT
To the extent necessary to enable the Customer to enjoy the benefits of its rights hereunder during the Term, streamB grants the Customer a non-exclusive and non-transferable license to use the Service and, on a single computer, the Proprietary Materials. The Customer may not market, resell, sublicense, and/or re-brand the Service purchased by it as its own, without the prior written consent and approval of streamB.
20) LOGO
streamB may display the Customer’s brand, including its logo on streamB’s website and in its marketing materials, as agreed upon with the Customer with respect to the format, including size and resolution, and location of such logo.
21) JOINT MARKETING
Subject to Customer’s written consent and approval in each instance, streamB may use the Customer’s name and/or logo in a listing of new, representative or continuing customers in press releases, on streamB’s website, or in other marketing materials or dissemination of information. The Parties may agree to cooperate in joint marketing activities or in issuing a joint press release at the request of either of them, subject to prior written consent and approval of the form and substance by both the Customer and streamB.
22) DATA PROTECTION
streamB may process traffic and/or incoming feed data relating to the Customer’s use of the Service necessary for performance of the Agreement. The Customer agrees that streamB may store such data and that such data may be transferred and stored outside the country in which it is collected, provided that streamB shall comply with all applicable regulatory requirements and industry standards and best practices for data protection, including backup of the Content on a regular basis.
23) CONFIDENTIALITY
a) Confidential Information. “Confidential Information” shall mean any terms of the Agreement, and any proprietary information or data, either oral or written, received from one Party (the “Disclosing Party”), or created by or proprietary to the Disclosing Party, whether or not designated as confidential by the Disclosing Party, which information or data the Disclosing Party discloses in connection with the purposes of the Agreement. This shall include pricing information for the Service, and the information or documentation contained in any of streamB’s Technologies.
b) Exclusions. Confidential Information does not include information that:
i) is already known by the recipient at the time of disclosure;
ii) is in the public domain at the time of its disclosure to the recipient;
iii) is received by the recipient from a third party who is not known or suspected by the recipient to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Disclosing Party;
iv) is independently developed by the recipient without reference to the Disclosing Party’s Confidential Information; or
v) is, or subsequently becomes, required to be disclosed by law or a court of competent jurisdiction.
c) Non-Disclosure. Each Party agrees that it will use the same care to protect against the unauthorized duplication, use, publication, or disclosure of such Confidential Information of the Disclosing Party as the recipient uses to protect its own proprietary and confidential Information, but in no event less than a reasonable degree of care, and will not use or disclose such Confidential Information except in connection with the purposes of the Agreement, unless authorized in writing by the other Party or compelled by an order of a court of competent jurisdiction.
d) Ownership. All Confidential Information remains the property of the Disclosing Party and no license or other rights to Confidential Information are granted or can be implied by anything in the Agreement.
e) Expiry. The confidentiality obligations set out in the Agreement will expire three (3) years after expiry or other termination of the Term, except for obligations with respect to trade secrets, which shall survive indefinitely. All materials, including copies and summaries, containing the Disclosing Party’s Confidential Information shall be destroyed or returned to the Disclosing Party, as instructed by the Disclosing Party, by the recipient promptly upon request.
f) Remedies. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach of this non-disclosure obligation by such Party, and that the Disclosing Party will be irreparably harmed as a result of any such breach. Accordingly, the receiving Party acknowledges and agrees that the Disclosing Party shall be entitled to obtain injunctive relief (including, without limitation, temporary and/or permanent injunctions), specific performance and other equitable relief (without being required to obtain a bond or post other security to or establish or prove actual damages or irreparable harm), in the event of any breach or threatened breach of any of the provisions of this non-disclosure obligation by the receiving Party. The right to injunctive relief, specific performance and other equitable relief shall be in addition to all other rights and remedies available to the Disclosing Party, whether at law, in equity or otherwise.
24) FORCE MAJEURE
No default, delay or failure to perform on the part of either Party shall be considered a breach of the Agreement if such default, delay or failure to perform is due entirely to Force Majeure. The Party unable to perform shall take all reasonable action to prevent, correct or amend such conditions which prevent it from rendering performance of its obligations.
25) GOVERNING LAW AND JURISDICTION
The Agreement shall be construed and interpreted according to the laws of the Province of Ontario and the Canadian federal laws applicable therein.
26) GENERAL TERMS
a) Entire Understanding. These TCs, and the AUP, the SLA, and the DPA shall constitute the entire agreement between the parties regarding its subject-matter and supersedes any and all prior and contemporaneous agreements, negotiation or discussion, whether oral or written.
b) Conflict. In the event of any conflict between the documents comprising the Agreement, precedence shall be given to the documents in the following order:
i) the SLA;
ii) the AUP;
iii) these TCs.
c) Including. The use of the words “include” or “including” in the Agreement will be by way of example rather than by limitation.
d) Interpretation. No provision of the Agreement shall be interpreted for or against any Party because that Party or its legal counsel drafted the provision.
e) Relationship of Parties. streamB and the Customer are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between streamB and the Customer.
f) Assignment; Enurement. The Agreement (in whole or in part) may not be assigned, by operation of law or otherwise, without first obtaining the express written consent of the other Party; provided however that the other Party’s consent shall not be required in case of a change of control of a Party, a sale by a Party of all or substantially all its assets, or assignment by a Party to an affiliate. Any attempted assignment in violation of this Section 26(f) shall be void. The Agreement shall be binding upon and is for the benefit of the Parties and their respective successors and permitted assigns.
g) No Third-Party Beneficiaries. streamB and the Customer agree that there shall be no third-party beneficiaries to the Agreement, including any sublicensee or customer of the Customer, any Third-Party Supplier of streamB or the insurance providers for either Party.
h) Amendments. Unless otherwise stipulated in the Agreement, the Agreement may not be changed except by a written amendment signed by both Parties.
i) No Waiver. Failure by either Party to enforce any terms of the Agreement shall not be deemed a waiver of future enforcement of those or any other terms in the Agreement, except to the extent that such terms shall have expired in accordance with their terms. No waiver is a continuing waiver.
j) Severability. Each provision of the Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement shall be prohibited or invalid, such provision shall be ineffective only to the extent of such prohibition or invalidity, and such prohibition or invalidity shall not invalidate the remainder of such provision or the remaining provisions of the Agreement in that or other jurisdictions, which provisions shall continue in full force and effect.
k) Currency. All amounts referred to in the Agreement are stated in US dollars.
l) Headings. The section headings in the Agreement have been inserted solely for ease of reference and are not intended to provide meaning or scope for the clauses that follow.
m) Time of the Essence. Time shall be of the essence in the Agreement and every part hereof, and no extension or variation of the Agreement shall operate as a waiver of the Agreement.
This AUP which forms part of the streamB Terms and Conditions of Service specifies the actions prohibited by streamB to users of the streamB Service and Systems. streamB reserves the right to amend this AUP at any time, in accordance with the streamB Terms and Conditions of Service. For the purpose of this AUP, all capitalized terms not defined herein shall have the respective meanings set forth in the streamB Terms and Conditions of Service.
##### 1. The Customer’s Obligations The Customer shall be solely responsible for the use of the streamB Service and Systems by its employees, directors, officers, representatives, customers, End Users or any other person or entity to whom the Customer grants authorized access to the Service or Systems, and shall take all reasonable measures required to ensure that such persons use the Service and Systems in accordance with the conditions of this AUP. The Customer shall be solely responsible for any and all media property, information, data, log file, file, image, video or any other type of content of any type or form that is posted, stored or displayed by the Customer on streamB Systems.
##### 2. Illegal Use The Customer shall not use any streamB Service or Systems in a manner that (i) is prohibited by any law or regulation, including, without limitation, copyright, trademark, trade secret or other intellectual property right, decency, libel, defamation, privacy, criminal law or any other law or regulation; (ii) would unreasonably interfere with streamB Systems or would in any way prevent the other users of the Service from using or benefiting from the Service; or (iii) would post or transmit material or content which contains a virus, bot, Trojan horse, worm or other harmful or disruptive elements. The Customer shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it in conjunction with its use of streamB Service.
##### 3. System and Network Security The Customer shall not violate or tamper with streamB Systems or security of streamB Systems. Examples of Systems or security violations include, without limitation, the following: a) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; b) unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; c) interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; and d) forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
streamB will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected.
##### 4. Limitation of Liability streamB does not control content which is posted, stored or displayed on its Service and does not censor or monitor the use of the Service by the Customer, its employees, directors, officers, representatives, customers, End Users or any other person or entity whom the Customer permits to access the Service. Except to the extent caused by streamB’s willfulness or negligence, streamB disclaims liability for any claim or loss arising from such access to or such use of the streamB Service and Systems, and for any content which is posted, stored or displayed on any inter-connected Network.
##### 5. Default streamB reserves the right, without prior notice, to suspend the Customer’s use of Service or to remove content if streamB in its sole discretion believes the Customer is using the Service in violation of this AUP, including without limitation for any illegal or disruptive purpose. In such circumstances, streamB may also terminate Service in accordance with the streamB Terms and Conditions of Service. Complaints regarding illegal use of the streamB Service or any related issue should be sent to complaints@streamB.com.
##### 1. The Customer’s Obligations The Customer shall be solely responsible for the use of the streamB Service and Systems by its employees, directors, officers, representatives, customers, End Users or any other person or entity to whom the Customer grants authorized access to the Service or Systems, and shall take all reasonable measures required to ensure that such persons use the Service and Systems in accordance with the conditions of this AUP. The Customer shall be solely responsible for any and all media property, information, data, log file, file, image, video or any other type of content of any type or form that is posted, stored or displayed by the Customer on streamB Systems.
##### 2. Illegal Use The Customer shall not use any streamB Service or Systems in a manner that (i) is prohibited by any law or regulation, including, without limitation, copyright, trademark, trade secret or other intellectual property right, decency, libel, defamation, privacy, criminal law or any other law or regulation; (ii) would unreasonably interfere with streamB Systems or would in any way prevent the other users of the Service from using or benefiting from the Service; or (iii) would post or transmit material or content which contains a virus, bot, Trojan horse, worm or other harmful or disruptive elements. The Customer shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it in conjunction with its use of streamB Service.
##### 3. System and Network Security The Customer shall not violate or tamper with streamB Systems or security of streamB Systems. Examples of Systems or security violations include, without limitation, the following: a) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; b) unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; c) interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; and d) forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
streamB will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected.
##### 4. Limitation of Liability streamB does not control content which is posted, stored or displayed on its Service and does not censor or monitor the use of the Service by the Customer, its employees, directors, officers, representatives, customers, End Users or any other person or entity whom the Customer permits to access the Service. Except to the extent caused by streamB’s willfulness or negligence, streamB disclaims liability for any claim or loss arising from such access to or such use of the streamB Service and Systems, and for any content which is posted, stored or displayed on any inter-connected Network.
##### 5. Default streamB reserves the right, without prior notice, to suspend the Customer’s use of Service or to remove content if streamB in its sole discretion believes the Customer is using the Service in violation of this AUP, including without limitation for any illegal or disruptive purpose. In such circumstances, streamB may also terminate Service in accordance with the streamB Terms and Conditions of Service. Complaints regarding illegal use of the streamB Service or any related issue should be sent to complaints@streamB.com.
**streamB shall meet or exceed the service levels set out below and maintain Service availability for the Customer.**
##### 1. Definitions
“**Emergency Support**” means Technical Support required by the Customer in the event one of the following occurs through no fault of the Customer:
a) Downtime incident; or
b) Third-Party Suppliers’ Network outage.
For Emergency Support to be available, the following conditions must be met: a) the impact of the reported Downtime incident or failure is such that the Customer is unable to use the Service or essential features of the Service are unavailable for more than fifteen (15) consecutive minutes; b) no alternative solution is reasonably available; and c) the reported Downtime incident or failure creates a significant, negative impact on the Customer’s productivity or service level.
“**Response Time**” means the interval from the time streamB receives a Support Request from the Customer to the time streamB sends a response to the Customer as to the status of the problem, either by phone or by email.
“**Routine Support**” means any Technical Support which is not Emergency Support including but not limited to: a) password support; b) information or clarification requests on the Service; c) stream configuration; and d) support requested for feature unavailability.
“**Support Request(s)**” means any and all the Customer’s request(s) for Technical Support, by e-mail to the Ticket Reporting System.
“**Ticket Reporting System**” means the streamB computerized system which tracks the detection, reporting, and resolution of all problems arising from or in connection with the Service provided to the Customer. For the purpose of this SLA, all capitalized terms not defined herein shall have the respective meanings set forth in the streamB Terms and Conditions of Service.
##### 2. Technical Support **a. Support Description**. streamB shall provide Technical Support to the Customer as follows: |Type|Means of communication|Availability|Response Time| |--------------------|-----------------------|--------------------|----------------------| |Routine Support |E-mail: care@streamB.com |Core Hours |Within 24 hours | |Emergency Support |E-mail: care@streamB.com | | Less than 1 hour | For Routine Support, Response Time applies only during Core Hours.
**b. Support Request**. All Support Requests shall contain the following information: 1. Customer Station (call letters); 2. Contact name; 3. Contact phone number; 4. Contact email address; 5. Description of the nature of the problem and how it was detected; and 6. Ocurrence time of the problem.
**c. Ticket Reporting System**. A trouble ticket will be opened in the Ticket Reporting System either: i) for Routine Support or Emergency Support, automatically upon receipt of a Support Request submitted by e-mail; or ii) for Emergency Support, manually by streamB upon receipt of a valid Support Request submitted by phone or within a dedicated channel in Slack, or iii) for Routine Support or Emergency Support, manually if streamB becomes aware of a problem. In case of any problem arising from software supplied by streamB, it will provide a temporary patch as soon as possible, but in any case within 60 minutes after a trouble ticket is opened in the Ticket Reporting System, and then streamB will provide a permanent fix in the next software release.
**d. Case Resolution**. A Support Request is considered resolved when Service and operations are restored to the Customer’s satisfaction and the Ticket Reporting System is updated with the information defining the fix for the problem, including without limitation: 1. The Customer problem was resolved to the Customer’s satisfaction; 2. The Customer problem could not be reproduced; 3. The resolution was pending a management business decision of the Customer; 4. A workaround was implemented to the Customer’s satisfaction; 5. Inability to contact the Customer after two (2) business days; 6. The Customer requested to cancel the Support Request; 7. The Customer received information that resolved the problem; 8. The Customer received notice that a software or hardware problem was caused by a known, unresolved bug in the software or hardware.
##### 3. End user support Unless otherwise agreed to between the Parties, no technical support, neither assistance nor troubleshooting, shall be provided by streamB to the Customer’s End Users, including without limitation End User configuration assistance, or remote desktop service. However, in the event streamB agrees on providing support to End Users, such support shall be limited to the following: a) Access to FAQ documentation; b) Support Request form (e-mail based) submitted directly into the Ticket Reporting System; c) Response Time: five (5) hours, during Core Hours; and d) Assistance and information provided to enable End Users to use the Service.
##### 4. Service Level **a.** streamB’s Services depend (in part) on the capacities of its Third-Party Suppliers as well as the systems operating at the Customer’s location(s) and point(s) of use. The service level agreements from those suppliers are reflected in this SLA and streamB’s commitments and define the minimum quality of service that the Customer should expect when a repair is required at streamB’s demarcation point (meaning streamB’s Systems side and not the Customer’s equipment). streamB is not liable for the failure of the Customer’s computer or telephony systems to operate or interoperate with streamB’s Systems and streamB is not responsible for the Customer’s computer or telephony systems.
**b. Uptime Guarantee**. streamB provides a guarantee of 99.9% Uptime to the Customer, for the Customer Streaming Content.
**c. Downtime and Uptime Calculation**. Downtime and Uptime for streaming Service shall be measured for each Customer Station separately but shall not be cumulative if unavailability occurs simultaneously for several Customer Stations. For example, if the streaming service for ten (10)Customer Stations is unavailable at the same time for five (5) hours, the Downtime period will be five (5) hours and will not be multiplied by the number of unavailable Customer Stations (fifty (50) hours), and the Uptime period for a month will be equal to twenty-four (24) hours multiplied by the number of days in such month and will not be multiplied by the number of available Customer Stations. The calculation of the Downtime of a Service officially starts when the live stream has become unavailable to all End Users due to a failure on the streamB Network for at least two (2) minutes and ends when the live stream becomes available to End Users. The Downtime will be calculated by using the Customer Stations with the longest Downtime. For example, if a problem with ten (10)Customer Stations is resolved Customer Station by Customer Station, the Downtime ends when the last Customer Station affected by the problem is restored.
**d. Downtime Credit**. In the event that streamB fails to meet the Uptime guarantee as specified in section 4.b of this SLA during any calendar month, streamB shall grant the Customer a credit against the monthly fees otherwise payable for the affected Service(s) in accordance with the following table: |Downtime| Credits| |--------------|--------| |To 2% | 10% | |>2% to 3% | 20% | |>3% | 30% |
For the avoidance of doubt, streamB acknowledges that such reduction in monthly fees applies with respect to the affected Service(s) provided during Uptime, including the per-GB fees for the affected Service(s) during such calendar month.
For Emergency Support to be available, the following conditions must be met: a) the impact of the reported Downtime incident or failure is such that the Customer is unable to use the Service or essential features of the Service are unavailable for more than fifteen (15) consecutive minutes; b) no alternative solution is reasonably available; and c) the reported Downtime incident or failure creates a significant, negative impact on the Customer’s productivity or service level.
“**Response Time**” means the interval from the time streamB receives a Support Request from the Customer to the time streamB sends a response to the Customer as to the status of the problem, either by phone or by email.
“**Routine Support**” means any Technical Support which is not Emergency Support including but not limited to: a) password support; b) information or clarification requests on the Service; c) stream configuration; and d) support requested for feature unavailability.
“**Support Request(s)**” means any and all the Customer’s request(s) for Technical Support, by e-mail to the Ticket Reporting System.
“**Ticket Reporting System**” means the streamB computerized system which tracks the detection, reporting, and resolution of all problems arising from or in connection with the Service provided to the Customer. For the purpose of this SLA, all capitalized terms not defined herein shall have the respective meanings set forth in the streamB Terms and Conditions of Service.
##### 2. Technical Support **a. Support Description**. streamB shall provide Technical Support to the Customer as follows: |Type|Means of communication|Availability|Response Time| |--------------------|-----------------------|--------------------|----------------------| |Routine Support |E-mail: care@streamB.com |Core Hours |Within 24 hours | |Emergency Support |E-mail: care@streamB.com | | Less than 1 hour | For Routine Support, Response Time applies only during Core Hours.
**b. Support Request**. All Support Requests shall contain the following information: 1. Customer Station (call letters); 2. Contact name; 3. Contact phone number; 4. Contact email address; 5. Description of the nature of the problem and how it was detected; and 6. Ocurrence time of the problem.
**c. Ticket Reporting System**. A trouble ticket will be opened in the Ticket Reporting System either: i) for Routine Support or Emergency Support, automatically upon receipt of a Support Request submitted by e-mail; or ii) for Emergency Support, manually by streamB upon receipt of a valid Support Request submitted by phone or within a dedicated channel in Slack, or iii) for Routine Support or Emergency Support, manually if streamB becomes aware of a problem. In case of any problem arising from software supplied by streamB, it will provide a temporary patch as soon as possible, but in any case within 60 minutes after a trouble ticket is opened in the Ticket Reporting System, and then streamB will provide a permanent fix in the next software release.
**d. Case Resolution**. A Support Request is considered resolved when Service and operations are restored to the Customer’s satisfaction and the Ticket Reporting System is updated with the information defining the fix for the problem, including without limitation: 1. The Customer problem was resolved to the Customer’s satisfaction; 2. The Customer problem could not be reproduced; 3. The resolution was pending a management business decision of the Customer; 4. A workaround was implemented to the Customer’s satisfaction; 5. Inability to contact the Customer after two (2) business days; 6. The Customer requested to cancel the Support Request; 7. The Customer received information that resolved the problem; 8. The Customer received notice that a software or hardware problem was caused by a known, unresolved bug in the software or hardware.
##### 3. End user support Unless otherwise agreed to between the Parties, no technical support, neither assistance nor troubleshooting, shall be provided by streamB to the Customer’s End Users, including without limitation End User configuration assistance, or remote desktop service. However, in the event streamB agrees on providing support to End Users, such support shall be limited to the following: a) Access to FAQ documentation; b) Support Request form (e-mail based) submitted directly into the Ticket Reporting System; c) Response Time: five (5) hours, during Core Hours; and d) Assistance and information provided to enable End Users to use the Service.
##### 4. Service Level **a.** streamB’s Services depend (in part) on the capacities of its Third-Party Suppliers as well as the systems operating at the Customer’s location(s) and point(s) of use. The service level agreements from those suppliers are reflected in this SLA and streamB’s commitments and define the minimum quality of service that the Customer should expect when a repair is required at streamB’s demarcation point (meaning streamB’s Systems side and not the Customer’s equipment). streamB is not liable for the failure of the Customer’s computer or telephony systems to operate or interoperate with streamB’s Systems and streamB is not responsible for the Customer’s computer or telephony systems.
**b. Uptime Guarantee**. streamB provides a guarantee of 99.9% Uptime to the Customer, for the Customer Streaming Content.
**c. Downtime and Uptime Calculation**. Downtime and Uptime for streaming Service shall be measured for each Customer Station separately but shall not be cumulative if unavailability occurs simultaneously for several Customer Stations. For example, if the streaming service for ten (10)Customer Stations is unavailable at the same time for five (5) hours, the Downtime period will be five (5) hours and will not be multiplied by the number of unavailable Customer Stations (fifty (50) hours), and the Uptime period for a month will be equal to twenty-four (24) hours multiplied by the number of days in such month and will not be multiplied by the number of available Customer Stations. The calculation of the Downtime of a Service officially starts when the live stream has become unavailable to all End Users due to a failure on the streamB Network for at least two (2) minutes and ends when the live stream becomes available to End Users. The Downtime will be calculated by using the Customer Stations with the longest Downtime. For example, if a problem with ten (10)Customer Stations is resolved Customer Station by Customer Station, the Downtime ends when the last Customer Station affected by the problem is restored.
**d. Downtime Credit**. In the event that streamB fails to meet the Uptime guarantee as specified in section 4.b of this SLA during any calendar month, streamB shall grant the Customer a credit against the monthly fees otherwise payable for the affected Service(s) in accordance with the following table: |Downtime| Credits| |--------------|--------| |To 2% | 10% | |>2% to 3% | 20% | |>3% | 30% |
For the avoidance of doubt, streamB acknowledges that such reduction in monthly fees applies with respect to the affected Service(s) provided during Uptime, including the per-GB fees for the affected Service(s) during such calendar month.
**ADDENDUM ON PROCESSING OF
PERSONAL DATA/PERSONAL INFORMATION
ON BEHALF OF
A CONTROLLER/BUSINESS**
between
Customer, as defined below
and
streamB, as defined below,
and collectively the “Parties”
##### 1. Subject Matter of Addendum. a) This Data Processing Addendum (“**Addendum**”) governs the collection and Processing of Personal Data/Personal Information by streamB as Processor/Service Provider for and on behalf of Customer as the Controller/Business. streamB’s collection and processing of Personal Data/Personal Information is based on Customer’s instructions relating to the products and services provided by streamB to Customer pursuant to commercial agreement(s) (“**Principal Agreement**”). Additional details on the collection and processing of Personal Data/Personal Information are described in EXHIBIT A “Data Processing Instructions”, which is incorporated herein by reference. The Parties agree that this Addendum is made and entered into as of the date of the last signature below and is part of the applicable Principal Agreement.
b) This Addendum is based on the provisions of the applicable laws of the European Union (in particular the GDPR, as defined below) and of the Member States, as well as the California Consumer Privacy Act of 2018.
C) The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement, the GDPR, or CCPA as applicable. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect. In this Addendum, (i) the words "includes", "including" and similar expressions mean "include (or including) without limitation".
##### 2. Definitions and Interpretation. “**Affiliate**” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“**Anonymized Data**” means Customer Personal Data that has been rendered anonymous in a manner to prevent it from being attributable to an identified or identifiable person.
“**Applicable Laws**” means the laws, regulations, and other similar instruments applicable to the Parties, including European Union or Member State laws and any other national or international laws applicable to the Parties, including GDPR and CCPA.
“**Business**” is as defined in the CCPA. “Business Purpose” is as defined in the CCPA.
“**California Consumer Privacy Act of 2018**” or “**CCPA**” means the California Consumer Privacy Act at Cal. Civ. Code Section 1798.100-1798.199 and any successor legislation including all amendments thereto and regulations thereunder.
“**Commission**” is as defined in the GDPR.
“**Consumer**” is as defined in the CCPA. “Controller” is as defined in the GDPR.
“**Customer**” means the individual or legal entity that is identified above and is receiving Services from streamB under the Principal Agreement.
“**Customer Personal Data**” means Personal Data Processed by a Processor on behalf of the Customer under or in connection with the Principal Agreement.
“**Data Protection Laws**” means applicable data protection or privacy laws and regulations, including GDPR and CCPA.
“**Data Subject**” means (i) an identified or identifiable natural person who is in the EEA or whose rights are protected by the GDPR, or (ii) a “Consumer” as the term is defined in the CCPA.
“**Digital Ad Insertion**” means the optional Service provided to Customers, should they elect to use it, for the insertion of digital audio ads into Customer Streaming Content and related services.
“**European Economic Area**” or “**EEA**” means the European Union’s member countries and Iceland, Lichtenstein and Norway.
“**GDPR**” means the General Data Protection Regulation no. 2016/679 and any successor legislation including all amendments thereto and regulations thereunder.
“**Member State**” is as defined in the GDPR.
“**Personal Data**” is as defined in the GDPR.
“**Personal Data Breach**” is as defined in the GDPR.
“**Personal Information**” is as defined in the CCPA, including household information and biometric information.
“**Principal Agreement**” means the entire agreement between streamB and the Customer for the Services, including the TCs, the SLA, the AUP, this Addendum, and instructions provided via configuration of the Services through the Portal, where such instructions are consistent with the terms of the TCs, the SLA, the AUP, this Addendum.
“**Processing**” is as defined in the GDPR and shall be read to include that term as it is defined in the CCPA, as applicable.
“**Processor**” is as defined in the GDPR.
“**SCCs**” means standard contractual clauses for international data transfers.
“**Sell**” is as defined in the CCPA.
“**Service Provider**” is as defined in the CCPA.
“**Services**” means the services provided by streamB in connection with the Principal Agreement or any other services provided by streamB during the term of the Principal Agreement in order to enable the delivery of such services.
“**streamB**” means leanStream Inc.
“**streamB Cookie**” means a cookie, pixel tag or similar technology provided by streamB to Customer, including through the implementation of a code snippet or script provided by streamB.
“**streamB Platform Interface**” means the interface to any information system made available to Customer in order to benefit from the Services.
“**Sub-Processor**” means a party (including any third party subject to Section 5) appointed by streamB to Process Personal Data/Personal Information on behalf of Customer in connection with the Services and the Principal Agreement.
For purposes of this Addendum, Service Providers engaged by streamB to Process Personal Data/Personal Information will be deemed Sub-Processors.
"**Sub-Processor Cookie**” means a cookie, pixel tag or similar technology created by a Sub-Processor and provided by streamB to Customer, for advertisements, including through the implementation of a code snippet or script provided.
“**Supervisory Authority**” means either (as applicable): (i) an independent public authority which is established by an EU Member State under Article 51 of the GDPR, or (ii) the California Attorney General.
“**Third Party**” is as defined in the CCPA.
##### 3. Purpose of Processing. **Customer acknowledges and agrees that:** (i) Customer (or an Affiliate on whose behalf Customer is authorized to provide instructions to streamB) is the Controller of the Data Subjects’ Personal Data Processed by streamB in streamB’s performance of the Services, and (ii) streamB shall act as Customer’s Processor in streamB’s performance of the Services. For the purposes of the CCPA, Customer acknowledges and agrees that streamB is a Service Provider and Customer is a Business. Unless otherwise required under Applicable Laws, the Controller shall provide streamB with access to the Controller’s data and streamB shall Process any Personal Data in streamB’s capacity as a Processor in accordance with the Data Processing Instructions, attached as EXHIBIT A, for the purposes of providing the Services, including digital audio content delivery, monetization, analytics and reporting services to Customer.
If streamB is required by Applicable Laws to Process Customer Personal Data for purposes other than those set out above, streamB shall, to the extent permitted by Applicable Laws, inform the Customer of such legal requirement before Processing such Customer Personal Data.
For purposes of CCPA, Customer (as a Business) directs streamB to collect, retain, use disclose, and/or otherwise process Personal Information: 1. for the fulfillment of streamB’s obligations to perform the Services pursuant to the terms of the Principal Agreement, 2. for the fulfillment of streamB’s obligations set forth in this Addendum, and/or 3. as otherwise directed by Customer in writing.
In addition to the purposes set forth above, Customer acknowledges and agrees that streamB may collect, retain, use, disclose and otherwise Process Personal Information to: 4. collect, use, retain or share Personal Information that has been (I) aggregated or (II) de-identified in accordance with CCPA, 5. comply with Applicable Laws, 6. comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, provincial, state, territorial or local authorities or other Supervisory Authority, 7. cooperate with law enforcement agencies concerning conduct or activity that Customer, streamB or a third party reasonably and in good faith believes may violate federal, provincial, state, territorial, or local law, and/or 8. exercise or defend legal claims.
streamB shall not process Personal Data for any purpose other than for the purposes set forth in this Section 3 “Purpose of Processing” and further agrees that it will not: (A) Sell the Personal Information, or (B) retain, use, or disclose the Personal Information for any commercial purpose other than for the specific purposes set forth above, unless instructed to do so in writing by Customer.
The Parties acknowledge and agree that they do not intend to engage in the Processing of any special categories of Personal Data (as defined in Articles 9 and 10 of the GDPR) under the Principal Agreement. Customer further acknowledges and agrees to take all necessary measures to prevent any such sensitive Personal Data being provided or made available to streamB. If Customer provides or makes available any such sensitive Personal Data, it is Customer’s sole responsibility when acting in its capacity as Controller to comply with the conditions relating to the Processing of such special categories of Personal Data under the GDPR, including Article 9.
##### 4. Legality of Processing. Whenever acting in its capacity as Controller, the Customer represents and warrants, or covenants, as the case may be, that: 1. it is solely responsible for assessing the lawfulness of Processing and meeting all the legal requirements regarding the Processing and sharing of Data Subjects’ Personal Data/Personal Information (as applicable) with streamB and streamB’s Sub-Processors according to Applicable Laws, including applicable Data Protection Laws, 2. It shall provide Personal Data/Personal Information in compliance with all Applicable Laws, 3. It has fully complied with transparency principles and provided to the Data Subjects an accurate privacy notice, 4. it has gathered the explicit consent of the Data Subject for the Processing of Data Subject’s Personal Data under GDPR and/or posted a “Do not sell my personal information” link on Customer’s websites under the CCPA, as applicable, and shall communicate, in both cases, the Data Subject’s consent/opt-out to streamB, 5. the request for consent shall comply with the requirements under the GDPR, including presenting the explicit consent mechanism in a manner which is clearly distinguishable from other matters, is intelligible and easily accessible, and uses clear, and simple language, 6. it shall keep Data Subjects’ Personal Data up to date, accurate, and complete, 7. it shall inform Data Subjects of their right to withdraw consent at any time and Customer shall effectuate any Data Subject’s withdrawal of consent, and 8. it shall honor access, deletion, opt-in and opt-out rights and requests. Customer further acknowledges and agrees that it shall: 9. be solely responsible for any information Customer provides to streamB, including the legality of such information, and ensure that Customer has all necessary rights and permissions to provide such information to streamB and for streamB to collect, retain, use, disclose, or otherwise process Personal Data/Personal Information, and 10. notify streamB of a Data Subject’s withdrawal of consent under the GDPR or a Consumer’s opt-out of the sale of Personal Information under the CCPA, provide streamB with updates on any modifications to the Data Subject’s Personal Data and Data Subject’s exercise of rights under Applicable Law, and provide such information in an interoperable format and in a manner reasonably acceptable to streamB. streamB will not be liable for any Processing contrary to a Data Subject’s choice if Customer fails to comply with such requirements.
##### 5. Sub-processors. streamB will, and will require any Sub-Processors to, only Process Customer Personal Data/Personal Information according to instructions which are reasonably equivalent to Customer’s documented instructions as set forth in EXHIBIT A of this Addendum and the Principal Agreement, or as otherwise required by Applicable Law. Customer instructs and authorizes streamB and each streamB Affiliate to instruct its Sub-Processors and/or other third parties to: 1. Process Personal Data/Personal Information, including engaging other Sub-Processors and/or third parties to Process Customer Personal Data/Personal Information in order to provide the Services, including enabling and optimizing the Services, and 2. engage any Sub-Processor on behalf and for the benefit of Customer. Customer represents and warrants that it is, and will at all times during the term of the Principal Agreement be, permitted to authorize such instruction. streamB may continue to use Sub-Processors already engaged by streamB as of the date of this Addendum. streamB’s current Sub- Processors are listed in EXHIBIT B. streamB will have the right to update the list of Sub-Processors any time by publishing an updated list of Sub-Processors on the streamB Platform Interface. Customer will have the right to object to the appointment of a Sub-Processor either in writing or through the streamB Platform Interface at any time. If any Sub-Processor of streamB will be Processing Customer Personal Data/Personal Information on behalf of the Customer, streamB shall enter into a written agreement with such Sub-Processor that includes terms substantially equivalent to those set out in this Addendum.
streamB will instruct any Sub-Processor engaged by streamB to Process Customer Personal Data/Personal Information according to instructions which are reasonably equivalent to the instructions as set forth in the Data Processing Instructions attached in EXHIBIT A. Notwithstanding the foregoing: 3. Sub-Processors will have the right to process Customer’s data based on such Sub-Processors’ existing technical and organizational measures or to implement their own appropriate technical and organizational security measures, provided such technical and organizational measures ensure a level of security appropriate to the risk taking into account the circumstances of the Processing, and (d) Sub-Processors will be responsible for assessing their own level of security and evaluating the effectiveness of their own security instructions. streamB will cause Sub-Processors to agree to submit documentation describing the implementation of the technical and organizational measures at the request of the Customer.
##### 6. Authorization to Share Customer Personal Data/Personal Information. Customer acknowledges and agrees that streamB may Process and share Customer Personal Data/Personal Information with contractors, agents and other third parties (including streamB Affiliates) which act as subcontractors for the purpose of providing the Services (which parties are, for greater certainty, deemed to be acting as Sub-Processors), as reasonably necessary for the provision of the Services and consistent with the Principal Agreement. streamB shall only grant access to the Personal Data/Personal Information being Processed on behalf of the Customer to persons under streamB’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need-to-know basis. streamB shall periodically review the list of persons to whom access has been provided. On the basis of such review, such access to Data/Personal Information can be withdrawn, if access is no longer necessary, and Personal Data/Personal Information shall consequently not be accessible anymore to those persons.
##### 7. Processing of Personal Data/Personal Information by Authorized Independent Controllers/ Third Parties. If Customer requests streamB to provide Services using entities that do not comply with the Data Processing Instructions set forth in EXHIBIT A, such entities will be classified as “Authorized Independent Controllers” or “Third Parties”. Customer shall authorize streamB to use such Authorized Independent Controllers/Third Parties by providing instructions to streamB either in writing or through the streamB Platform Interface.
If Customer amends the list of Authorized Independent Controllers/Third Parties which Customer has authorized streamB to use to sub-process Customer data, Customer shall be responsible for assessing the impact on the Processing of Personal Information/Personal Data, and for its own compliance with all Applicable Laws, including applicable Data Protection Laws, including changes to privacy policy, privacy notice, records of processing, and/or lawfulness of processing.
##### 8. Transfer of Personal Data outside of the EEA. If the Customer is subject to GDPR, streamB agrees not to transfer Customer Personal Data to, or Process such Customer Personal Data in, a location outside of the EEA (in each case referred to hereafter as a “Transfer”) without Customer’s prior written consent, which consent shall not be unreasonably withheld or delayed. Prior written consent of Customer is not required for the transferring to, or accessing by, the employees/contractors of streamB of Customer Personal Data.
For the purposes of this Section 8, Customer hereby consents to Transfers outside of the EEA where: 1. streamB or its Sub-Processor (as the case may be) has entered into standard contractual clauses or the equivalent thereof for the transfer of personal data to Processors established in third countries, as approved by the Commission, with Customer (or a Customer Affiliate) as the data exporter, 2. where such Transfer is subject to an adequacy decision by the Commission, or 3. where the Transfer otherwise complies with Applicable Laws, including Data Protection Law.
##### 9. Security of Processing. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing the Customer Personal Data/Personal Information as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, streamB shall implement appropriate technical and organizational measures for the Processing of Customer Personal Data/Personal Information to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and the applicable measures in the CCPA.
In assessing the appropriate level of security, streamB shall take into account the risks that are presented by such Processing, in particular risks related to Personal Data Breaches.
Customer acknowledges that it (not streamB): 1. controls the nature and contents of the Personal Data/Personal Information and implements its own technical and organizational measures appropriate to the risk of Processing, and 2. acts as its own system administrator and controls End Users’ Personal Data/Personal Information. Customer represents and warrants or covenants, as applicable, that whenever acting in its capacity as Controller/Business: 3. it has collected all Personal Data/Personal Information in accordance with Applicable Laws, including applicable Data Protection Laws, 4. the Processing of Personal Data/Personal Information in accordance with this Addendum will not violate Applicable Laws, including applicable Data Protection Laws, and 5. Customer will take all steps necessary to ensure it achieves the foregoing, including by providing Data Subjects with appropriate privacy notices, obtaining required consent, and ensuring that there is a legal basis for Processing Personal Data/Personal Information.
Customer will indemnify and hold harmless streamB and its Sub-Processors against all losses, fines, and regulatory sanctions arising from any claim by a third party (including a Supervisory Authority) arising out of Customer’s negligence, willful misconduct, and/or any breach of this Section 9 by Customer.
##### 10. Personal Data Breaches. streamB will notify Customer without undue delay if streamB becomes aware of a Personal Data Breach affecting Customer Personal Data/Personal Information. streamB’s notification of or response to a Personal Data Breach under this Section 10 will not be construed as an acknowledgment by streamB of any fault or liability with respect to the Personal Data Breach. streamB shall cooperate with Customer and provide commercially reasonable assistance as may be required to comply with any reporting obligations under GDPR and CCPA due to such Personal Data Breach. Any such assistance required by streamB under this Section 10 shall be at Customer’s expense.
##### 11. Assistance. Taking into account the nature of the Processing, to the extent possible, streamB shall assist Customer by implementing appropriate technical and organizational measures to assist Customer with Customer’s obligations regarding Data Subjects’ rights requests under Chapter III of GDPR, CCPA, and other Applicable Laws, including applicable Data Protection Laws.
Taking into account the nature of the Processing and the information available to streamB, streamB shall assist Customer in ensuring compliance with Customer’s obligations relating to the security of Personal Data/Personal Information, data protection impact assessments and prior consultation requirements under Applicable Laws, including applicable Data Protection Law. streamB shall have no obligation to reidentify or otherwise link information that is not maintained in a manner that would be considered Personal Data for the purposes of the GDPR or Personal Information for purposes of the CCPA.
streamB shall: 1. promptly notify Customer if streamB or streamB’s Sub-Processors receive a request from a Data Subject under any Applicable Laws, including Data Protection Law, with respect to Customer Personal Data, and 2. shall ensure that neither streamB nor streamB’s Sub-Processors respond to Data Subject requests, except upon the documented instructions of Customer or as required by Applicable Laws, in which case streamB shall, to the extent permitted by Applicable Laws, inform Customer of such legal requirement before streamB or streamB’s Sub-Processors respond to any request. Customer acknowledges and agrees that any assistance required by streamB beyond the requirements of Applicable Laws shall be at Customer’s expense. Notwithstanding the foregoing, Customer understands and agrees that for purposes of the CCPA, Customer is solely responsible for responding to requests to exercise Data Subjects’ rights requests and that streamB shall have no responsibility to respond directly to an individual on Customer’s behalf, absent written instructions from Customer.
##### 12. Deletion or return of Customer Personal Data. streamB shall retain copies of any Customer Personal Data/Personal Information for a period of at least ninety (90) days (the “Retention Period”) from the date of termination of any Services involving the Processing of Customer Personal Data/Personal Information (the “Termination Date”). On expiry of the Retention Period, Customer may direct streamB to promptly delete and procure the deletion of all copies of such Customer Personal Data/Personal Information at Customer’s request.
During the Retention Period, Customer may, in its sole discretion, provide written notice to streamB requiring streamB to: 1. return a complete copy of all Customer Personal Data/Personal Information to Customer by secure file transfer in such format as is reasonably disclosed to Customer by streamB, and 2. save (as otherwise set forth in this Section 12), delete and procure the confirmation of deletion of all other copies of Customer Personal Data/Personal Information Processed by streamB or a streamB Sub-Processor. streamB and each Sub-Processor may retain Customer Personal Data/Personal Information to the extent required by Applicable Laws for such period of time required by Applicable Laws, provided, however, that streamB ensures the confidentiality of all such Customer Personal Data/Personal Information and that such Customer Personal Data/Personal Information is only Processed as is necessary for the purpose(s) specified in the Applicable Laws requiring the storage of Personal Data/Personal Information and for no other purpose.
streamB shall, at the request of the Customer, provide written certification to Customer that streamB has fully complied with this Section 12 within thirty (30) days of the expiry of the Retention Period.
##### 13. Right to Assess. Upon at least sixty (60) days’ prior written notice by Customer, streamB shall grant Customer (or a mutually acceptable independent auditor) permission to perform, at Customer’s expense, an assessment, audit, examination or review (an “Assessment”) of all controls in streamB’s organizational, physical and/or technical environment relating to the Customer Personal Data Processed and/or Services provided to Customer pursuant to the Principal Agreement. Such Assessment shall be carried out no more than once per year. streamB shall cooperate with the conducting of such Assessment by providing reasonable access to knowledgeable personnel, physical premises, documentation, infrastructure and application software that Processes, stores or transfers Customer Personal Data pursuant to the Principal Agreement, demonstrating how streamB complies with its obligations related to privacy and data security under the Principal Agreement (including this Addendum). In addition, upon Customer's prior written request, streamB shall provide Customer with the results of any audit performed by or on behalf of streamB that assesses the effectiveness of streamB’s information security program as relevant to the security and confidentiality of Customer Personal Data that streamB Processes on Customer’s behalf during the course of the Principal Agreement. streamB acknowledges and agrees that Supervisory Authorities may request information from streamB and carry out investigations in the form of data protection audits of streamB, in accordance with Applicable Laws (“Authority Assessments”). To the extent legally permissible, streamB shall notify Customer promptly, providing full details of any streamB concerns, if streamB believes any request by Customer under this Section 13 would infringe Applicable Laws.
##### 14. Anonymization. Customer agrees that streamB is permitted to Process the Customer Personal Data/Personal Information in order to create Anonymized Data, which streamB is entitled to retain and use for its own purposes. Customer further agrees that in the event that it requires streamB to delete Customer Personal Data/ Personal Information, including under Section 13, the deletion of the Customer Personal Data/Personal Information may be effectuated and deemed complete through an anonymization process resulting in Anonymized Data.
##### 15. Cookies. Customer shall not place, or cause to be placed, a streamB Cookie on an End User’s computer, mobile phone or other terminal device unless it has fulfilled its obligations under Applicable Laws, including collecting such End User’s consent which consent complies with the requirements of Applicable Laws, including applicable Data Protection Laws (a “Cookie Consent”). Customer shall maintain appropriate records of Cookie Consents that it collects and shall provide streamB with evidence of any Cookies Consent as requested by streamB from time to time. Customer acknowledges that servers owned and operated by third parties may be used in connection with advertisement targeting, delivery, measurement and reporting hereunder, including as may be required by advertisers, and that streamB and such third parties use cookies, beacons and other technologies in connection with the foregoing. Customer agrees to disclose in the privacy policies of each property that technologies such as cookies and web beacons may be used on such property by third party advertising companies to determine End User interests and characteristics, and deliver advertising based on those interests and characteristics, and that End Users may visit http://www.aboutads.info and http://www.networkadvertising.org (or other industry standard organization as approved by streamB) for more information about such practices, and how to opt-out from the use of such technologies. Customer shall observe any streamB requests to comply with any laws, rules, regulations, industry self-regulatory efforts or best practices relating to End User privacy.
##### 16. Miscellaneous. **a) Conflicts**. In the event of any conflict between this Addendum and the Principal Agreement between the Parties, these terms will govern solely with respect to the subject matter hereof.
**b) Changes in Data Protection Laws**. streamB may notify the Customer in writing from time to time of any amendments to this Addendum resulting from a change in Applicable Laws, including Data Protection Laws, including the generality of the foregoing, any variations which are:
1. required as a result of any changes to UK Applicable Laws, including Data Protection Laws, following any exit of the UK from the EU, or 2. required to take account of any new data transfer mechanisms for the purposes of Section 8. Any such amendments shall take effect thirty (30) days after written notice is sent by streamB.
**c) Applicable Laws**. This Addendum is subject to the legal provisions stipulated above in Section 1.2.
**d) Governing Law and Jurisdiction**. This Addendum and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of [Germany] for Customers that are legally incorporated in a country of the EEA and in accordance with the laws of Ontario for Businesses that are legally incorporated elsewhere. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of [Germany] for Customers that are legally incorporated in a country of the EEA, the courts of Ontario for Businesses that are legally incorporated elsewhere, and all courts competent to hear appeals therefrom.
**e) Severance**. If any provision, or portion thereof, of this Addendum is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will: 1. not impair or affect the validity, legality, or enforceability of the remaining provisions of this Addendum, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct and 2. amended as necessary to ensure its validity and enforceability, while preserving the intentions of the Parties as closely as possible.
**f) Supersedes Previous Agreements**. This Addendum, including all Exhibits hereto, constitutes the entire understanding between streamB and Customer relating to the subject matter hereof and supersedes and cancels all prior written and oral agreements and understandings with respect to the subject matter of this Addendum.
##### 1. Subject Matter of Addendum. a) This Data Processing Addendum (“**Addendum**”) governs the collection and Processing of Personal Data/Personal Information by streamB as Processor/Service Provider for and on behalf of Customer as the Controller/Business. streamB’s collection and processing of Personal Data/Personal Information is based on Customer’s instructions relating to the products and services provided by streamB to Customer pursuant to commercial agreement(s) (“**Principal Agreement**”). Additional details on the collection and processing of Personal Data/Personal Information are described in EXHIBIT A “Data Processing Instructions”, which is incorporated herein by reference. The Parties agree that this Addendum is made and entered into as of the date of the last signature below and is part of the applicable Principal Agreement.
b) This Addendum is based on the provisions of the applicable laws of the European Union (in particular the GDPR, as defined below) and of the Member States, as well as the California Consumer Privacy Act of 2018.
C) The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement, the GDPR, or CCPA as applicable. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect. In this Addendum, (i) the words "includes", "including" and similar expressions mean "include (or including) without limitation".
##### 2. Definitions and Interpretation. “**Affiliate**” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
“**Anonymized Data**” means Customer Personal Data that has been rendered anonymous in a manner to prevent it from being attributable to an identified or identifiable person.
“**Applicable Laws**” means the laws, regulations, and other similar instruments applicable to the Parties, including European Union or Member State laws and any other national or international laws applicable to the Parties, including GDPR and CCPA.
“**Business**” is as defined in the CCPA. “Business Purpose” is as defined in the CCPA.
“**California Consumer Privacy Act of 2018**” or “**CCPA**” means the California Consumer Privacy Act at Cal. Civ. Code Section 1798.100-1798.199 and any successor legislation including all amendments thereto and regulations thereunder.
“**Commission**” is as defined in the GDPR.
“**Consumer**” is as defined in the CCPA. “Controller” is as defined in the GDPR.
“**Customer**” means the individual or legal entity that is identified above and is receiving Services from streamB under the Principal Agreement.
“**Customer Personal Data**” means Personal Data Processed by a Processor on behalf of the Customer under or in connection with the Principal Agreement.
“**Data Protection Laws**” means applicable data protection or privacy laws and regulations, including GDPR and CCPA.
“**Data Subject**” means (i) an identified or identifiable natural person who is in the EEA or whose rights are protected by the GDPR, or (ii) a “Consumer” as the term is defined in the CCPA.
“**Digital Ad Insertion**” means the optional Service provided to Customers, should they elect to use it, for the insertion of digital audio ads into Customer Streaming Content and related services.
“**European Economic Area**” or “**EEA**” means the European Union’s member countries and Iceland, Lichtenstein and Norway.
“**GDPR**” means the General Data Protection Regulation no. 2016/679 and any successor legislation including all amendments thereto and regulations thereunder.
“**Member State**” is as defined in the GDPR.
“**Personal Data**” is as defined in the GDPR.
“**Personal Data Breach**” is as defined in the GDPR.
“**Personal Information**” is as defined in the CCPA, including household information and biometric information.
“**Principal Agreement**” means the entire agreement between streamB and the Customer for the Services, including the TCs, the SLA, the AUP, this Addendum, and instructions provided via configuration of the Services through the Portal, where such instructions are consistent with the terms of the TCs, the SLA, the AUP, this Addendum.
“**Processing**” is as defined in the GDPR and shall be read to include that term as it is defined in the CCPA, as applicable.
“**Processor**” is as defined in the GDPR.
“**SCCs**” means standard contractual clauses for international data transfers.
“**Sell**” is as defined in the CCPA.
“**Service Provider**” is as defined in the CCPA.
“**Services**” means the services provided by streamB in connection with the Principal Agreement or any other services provided by streamB during the term of the Principal Agreement in order to enable the delivery of such services.
“**streamB**” means leanStream Inc.
“**streamB Cookie**” means a cookie, pixel tag or similar technology provided by streamB to Customer, including through the implementation of a code snippet or script provided by streamB.
“**streamB Platform Interface**” means the interface to any information system made available to Customer in order to benefit from the Services.
“**Sub-Processor**” means a party (including any third party subject to Section 5) appointed by streamB to Process Personal Data/Personal Information on behalf of Customer in connection with the Services and the Principal Agreement.
For purposes of this Addendum, Service Providers engaged by streamB to Process Personal Data/Personal Information will be deemed Sub-Processors.
"**Sub-Processor Cookie**” means a cookie, pixel tag or similar technology created by a Sub-Processor and provided by streamB to Customer, for advertisements, including through the implementation of a code snippet or script provided.
“**Supervisory Authority**” means either (as applicable): (i) an independent public authority which is established by an EU Member State under Article 51 of the GDPR, or (ii) the California Attorney General.
“**Third Party**” is as defined in the CCPA.
##### 3. Purpose of Processing. **Customer acknowledges and agrees that:** (i) Customer (or an Affiliate on whose behalf Customer is authorized to provide instructions to streamB) is the Controller of the Data Subjects’ Personal Data Processed by streamB in streamB’s performance of the Services, and (ii) streamB shall act as Customer’s Processor in streamB’s performance of the Services. For the purposes of the CCPA, Customer acknowledges and agrees that streamB is a Service Provider and Customer is a Business. Unless otherwise required under Applicable Laws, the Controller shall provide streamB with access to the Controller’s data and streamB shall Process any Personal Data in streamB’s capacity as a Processor in accordance with the Data Processing Instructions, attached as EXHIBIT A, for the purposes of providing the Services, including digital audio content delivery, monetization, analytics and reporting services to Customer.
If streamB is required by Applicable Laws to Process Customer Personal Data for purposes other than those set out above, streamB shall, to the extent permitted by Applicable Laws, inform the Customer of such legal requirement before Processing such Customer Personal Data.
For purposes of CCPA, Customer (as a Business) directs streamB to collect, retain, use disclose, and/or otherwise process Personal Information: 1. for the fulfillment of streamB’s obligations to perform the Services pursuant to the terms of the Principal Agreement, 2. for the fulfillment of streamB’s obligations set forth in this Addendum, and/or 3. as otherwise directed by Customer in writing.
In addition to the purposes set forth above, Customer acknowledges and agrees that streamB may collect, retain, use, disclose and otherwise Process Personal Information to: 4. collect, use, retain or share Personal Information that has been (I) aggregated or (II) de-identified in accordance with CCPA, 5. comply with Applicable Laws, 6. comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, provincial, state, territorial or local authorities or other Supervisory Authority, 7. cooperate with law enforcement agencies concerning conduct or activity that Customer, streamB or a third party reasonably and in good faith believes may violate federal, provincial, state, territorial, or local law, and/or 8. exercise or defend legal claims.
streamB shall not process Personal Data for any purpose other than for the purposes set forth in this Section 3 “Purpose of Processing” and further agrees that it will not: (A) Sell the Personal Information, or (B) retain, use, or disclose the Personal Information for any commercial purpose other than for the specific purposes set forth above, unless instructed to do so in writing by Customer.
The Parties acknowledge and agree that they do not intend to engage in the Processing of any special categories of Personal Data (as defined in Articles 9 and 10 of the GDPR) under the Principal Agreement. Customer further acknowledges and agrees to take all necessary measures to prevent any such sensitive Personal Data being provided or made available to streamB. If Customer provides or makes available any such sensitive Personal Data, it is Customer’s sole responsibility when acting in its capacity as Controller to comply with the conditions relating to the Processing of such special categories of Personal Data under the GDPR, including Article 9.
##### 4. Legality of Processing. Whenever acting in its capacity as Controller, the Customer represents and warrants, or covenants, as the case may be, that: 1. it is solely responsible for assessing the lawfulness of Processing and meeting all the legal requirements regarding the Processing and sharing of Data Subjects’ Personal Data/Personal Information (as applicable) with streamB and streamB’s Sub-Processors according to Applicable Laws, including applicable Data Protection Laws, 2. It shall provide Personal Data/Personal Information in compliance with all Applicable Laws, 3. It has fully complied with transparency principles and provided to the Data Subjects an accurate privacy notice, 4. it has gathered the explicit consent of the Data Subject for the Processing of Data Subject’s Personal Data under GDPR and/or posted a “Do not sell my personal information” link on Customer’s websites under the CCPA, as applicable, and shall communicate, in both cases, the Data Subject’s consent/opt-out to streamB, 5. the request for consent shall comply with the requirements under the GDPR, including presenting the explicit consent mechanism in a manner which is clearly distinguishable from other matters, is intelligible and easily accessible, and uses clear, and simple language, 6. it shall keep Data Subjects’ Personal Data up to date, accurate, and complete, 7. it shall inform Data Subjects of their right to withdraw consent at any time and Customer shall effectuate any Data Subject’s withdrawal of consent, and 8. it shall honor access, deletion, opt-in and opt-out rights and requests. Customer further acknowledges and agrees that it shall: 9. be solely responsible for any information Customer provides to streamB, including the legality of such information, and ensure that Customer has all necessary rights and permissions to provide such information to streamB and for streamB to collect, retain, use, disclose, or otherwise process Personal Data/Personal Information, and 10. notify streamB of a Data Subject’s withdrawal of consent under the GDPR or a Consumer’s opt-out of the sale of Personal Information under the CCPA, provide streamB with updates on any modifications to the Data Subject’s Personal Data and Data Subject’s exercise of rights under Applicable Law, and provide such information in an interoperable format and in a manner reasonably acceptable to streamB. streamB will not be liable for any Processing contrary to a Data Subject’s choice if Customer fails to comply with such requirements.
##### 5. Sub-processors. streamB will, and will require any Sub-Processors to, only Process Customer Personal Data/Personal Information according to instructions which are reasonably equivalent to Customer’s documented instructions as set forth in EXHIBIT A of this Addendum and the Principal Agreement, or as otherwise required by Applicable Law. Customer instructs and authorizes streamB and each streamB Affiliate to instruct its Sub-Processors and/or other third parties to: 1. Process Personal Data/Personal Information, including engaging other Sub-Processors and/or third parties to Process Customer Personal Data/Personal Information in order to provide the Services, including enabling and optimizing the Services, and 2. engage any Sub-Processor on behalf and for the benefit of Customer. Customer represents and warrants that it is, and will at all times during the term of the Principal Agreement be, permitted to authorize such instruction. streamB may continue to use Sub-Processors already engaged by streamB as of the date of this Addendum. streamB’s current Sub- Processors are listed in EXHIBIT B. streamB will have the right to update the list of Sub-Processors any time by publishing an updated list of Sub-Processors on the streamB Platform Interface. Customer will have the right to object to the appointment of a Sub-Processor either in writing or through the streamB Platform Interface at any time. If any Sub-Processor of streamB will be Processing Customer Personal Data/Personal Information on behalf of the Customer, streamB shall enter into a written agreement with such Sub-Processor that includes terms substantially equivalent to those set out in this Addendum.
streamB will instruct any Sub-Processor engaged by streamB to Process Customer Personal Data/Personal Information according to instructions which are reasonably equivalent to the instructions as set forth in the Data Processing Instructions attached in EXHIBIT A. Notwithstanding the foregoing: 3. Sub-Processors will have the right to process Customer’s data based on such Sub-Processors’ existing technical and organizational measures or to implement their own appropriate technical and organizational security measures, provided such technical and organizational measures ensure a level of security appropriate to the risk taking into account the circumstances of the Processing, and (d) Sub-Processors will be responsible for assessing their own level of security and evaluating the effectiveness of their own security instructions. streamB will cause Sub-Processors to agree to submit documentation describing the implementation of the technical and organizational measures at the request of the Customer.
##### 6. Authorization to Share Customer Personal Data/Personal Information. Customer acknowledges and agrees that streamB may Process and share Customer Personal Data/Personal Information with contractors, agents and other third parties (including streamB Affiliates) which act as subcontractors for the purpose of providing the Services (which parties are, for greater certainty, deemed to be acting as Sub-Processors), as reasonably necessary for the provision of the Services and consistent with the Principal Agreement. streamB shall only grant access to the Personal Data/Personal Information being Processed on behalf of the Customer to persons under streamB’s authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need-to-know basis. streamB shall periodically review the list of persons to whom access has been provided. On the basis of such review, such access to Data/Personal Information can be withdrawn, if access is no longer necessary, and Personal Data/Personal Information shall consequently not be accessible anymore to those persons.
##### 7. Processing of Personal Data/Personal Information by Authorized Independent Controllers/ Third Parties. If Customer requests streamB to provide Services using entities that do not comply with the Data Processing Instructions set forth in EXHIBIT A, such entities will be classified as “Authorized Independent Controllers” or “Third Parties”. Customer shall authorize streamB to use such Authorized Independent Controllers/Third Parties by providing instructions to streamB either in writing or through the streamB Platform Interface.
If Customer amends the list of Authorized Independent Controllers/Third Parties which Customer has authorized streamB to use to sub-process Customer data, Customer shall be responsible for assessing the impact on the Processing of Personal Information/Personal Data, and for its own compliance with all Applicable Laws, including applicable Data Protection Laws, including changes to privacy policy, privacy notice, records of processing, and/or lawfulness of processing.
##### 8. Transfer of Personal Data outside of the EEA. If the Customer is subject to GDPR, streamB agrees not to transfer Customer Personal Data to, or Process such Customer Personal Data in, a location outside of the EEA (in each case referred to hereafter as a “Transfer”) without Customer’s prior written consent, which consent shall not be unreasonably withheld or delayed. Prior written consent of Customer is not required for the transferring to, or accessing by, the employees/contractors of streamB of Customer Personal Data.
For the purposes of this Section 8, Customer hereby consents to Transfers outside of the EEA where: 1. streamB or its Sub-Processor (as the case may be) has entered into standard contractual clauses or the equivalent thereof for the transfer of personal data to Processors established in third countries, as approved by the Commission, with Customer (or a Customer Affiliate) as the data exporter, 2. where such Transfer is subject to an adequacy decision by the Commission, or 3. where the Transfer otherwise complies with Applicable Laws, including Data Protection Law.
##### 9. Security of Processing. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing the Customer Personal Data/Personal Information as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, streamB shall implement appropriate technical and organizational measures for the Processing of Customer Personal Data/Personal Information to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR and the applicable measures in the CCPA.
In assessing the appropriate level of security, streamB shall take into account the risks that are presented by such Processing, in particular risks related to Personal Data Breaches.
Customer acknowledges that it (not streamB): 1. controls the nature and contents of the Personal Data/Personal Information and implements its own technical and organizational measures appropriate to the risk of Processing, and 2. acts as its own system administrator and controls End Users’ Personal Data/Personal Information. Customer represents and warrants or covenants, as applicable, that whenever acting in its capacity as Controller/Business: 3. it has collected all Personal Data/Personal Information in accordance with Applicable Laws, including applicable Data Protection Laws, 4. the Processing of Personal Data/Personal Information in accordance with this Addendum will not violate Applicable Laws, including applicable Data Protection Laws, and 5. Customer will take all steps necessary to ensure it achieves the foregoing, including by providing Data Subjects with appropriate privacy notices, obtaining required consent, and ensuring that there is a legal basis for Processing Personal Data/Personal Information.
Customer will indemnify and hold harmless streamB and its Sub-Processors against all losses, fines, and regulatory sanctions arising from any claim by a third party (including a Supervisory Authority) arising out of Customer’s negligence, willful misconduct, and/or any breach of this Section 9 by Customer.
##### 10. Personal Data Breaches. streamB will notify Customer without undue delay if streamB becomes aware of a Personal Data Breach affecting Customer Personal Data/Personal Information. streamB’s notification of or response to a Personal Data Breach under this Section 10 will not be construed as an acknowledgment by streamB of any fault or liability with respect to the Personal Data Breach. streamB shall cooperate with Customer and provide commercially reasonable assistance as may be required to comply with any reporting obligations under GDPR and CCPA due to such Personal Data Breach. Any such assistance required by streamB under this Section 10 shall be at Customer’s expense.
##### 11. Assistance. Taking into account the nature of the Processing, to the extent possible, streamB shall assist Customer by implementing appropriate technical and organizational measures to assist Customer with Customer’s obligations regarding Data Subjects’ rights requests under Chapter III of GDPR, CCPA, and other Applicable Laws, including applicable Data Protection Laws.
Taking into account the nature of the Processing and the information available to streamB, streamB shall assist Customer in ensuring compliance with Customer’s obligations relating to the security of Personal Data/Personal Information, data protection impact assessments and prior consultation requirements under Applicable Laws, including applicable Data Protection Law. streamB shall have no obligation to reidentify or otherwise link information that is not maintained in a manner that would be considered Personal Data for the purposes of the GDPR or Personal Information for purposes of the CCPA.
streamB shall: 1. promptly notify Customer if streamB or streamB’s Sub-Processors receive a request from a Data Subject under any Applicable Laws, including Data Protection Law, with respect to Customer Personal Data, and 2. shall ensure that neither streamB nor streamB’s Sub-Processors respond to Data Subject requests, except upon the documented instructions of Customer or as required by Applicable Laws, in which case streamB shall, to the extent permitted by Applicable Laws, inform Customer of such legal requirement before streamB or streamB’s Sub-Processors respond to any request. Customer acknowledges and agrees that any assistance required by streamB beyond the requirements of Applicable Laws shall be at Customer’s expense. Notwithstanding the foregoing, Customer understands and agrees that for purposes of the CCPA, Customer is solely responsible for responding to requests to exercise Data Subjects’ rights requests and that streamB shall have no responsibility to respond directly to an individual on Customer’s behalf, absent written instructions from Customer.
##### 12. Deletion or return of Customer Personal Data. streamB shall retain copies of any Customer Personal Data/Personal Information for a period of at least ninety (90) days (the “Retention Period”) from the date of termination of any Services involving the Processing of Customer Personal Data/Personal Information (the “Termination Date”). On expiry of the Retention Period, Customer may direct streamB to promptly delete and procure the deletion of all copies of such Customer Personal Data/Personal Information at Customer’s request.
During the Retention Period, Customer may, in its sole discretion, provide written notice to streamB requiring streamB to: 1. return a complete copy of all Customer Personal Data/Personal Information to Customer by secure file transfer in such format as is reasonably disclosed to Customer by streamB, and 2. save (as otherwise set forth in this Section 12), delete and procure the confirmation of deletion of all other copies of Customer Personal Data/Personal Information Processed by streamB or a streamB Sub-Processor. streamB and each Sub-Processor may retain Customer Personal Data/Personal Information to the extent required by Applicable Laws for such period of time required by Applicable Laws, provided, however, that streamB ensures the confidentiality of all such Customer Personal Data/Personal Information and that such Customer Personal Data/Personal Information is only Processed as is necessary for the purpose(s) specified in the Applicable Laws requiring the storage of Personal Data/Personal Information and for no other purpose.
streamB shall, at the request of the Customer, provide written certification to Customer that streamB has fully complied with this Section 12 within thirty (30) days of the expiry of the Retention Period.
##### 13. Right to Assess. Upon at least sixty (60) days’ prior written notice by Customer, streamB shall grant Customer (or a mutually acceptable independent auditor) permission to perform, at Customer’s expense, an assessment, audit, examination or review (an “Assessment”) of all controls in streamB’s organizational, physical and/or technical environment relating to the Customer Personal Data Processed and/or Services provided to Customer pursuant to the Principal Agreement. Such Assessment shall be carried out no more than once per year. streamB shall cooperate with the conducting of such Assessment by providing reasonable access to knowledgeable personnel, physical premises, documentation, infrastructure and application software that Processes, stores or transfers Customer Personal Data pursuant to the Principal Agreement, demonstrating how streamB complies with its obligations related to privacy and data security under the Principal Agreement (including this Addendum). In addition, upon Customer's prior written request, streamB shall provide Customer with the results of any audit performed by or on behalf of streamB that assesses the effectiveness of streamB’s information security program as relevant to the security and confidentiality of Customer Personal Data that streamB Processes on Customer’s behalf during the course of the Principal Agreement. streamB acknowledges and agrees that Supervisory Authorities may request information from streamB and carry out investigations in the form of data protection audits of streamB, in accordance with Applicable Laws (“Authority Assessments”). To the extent legally permissible, streamB shall notify Customer promptly, providing full details of any streamB concerns, if streamB believes any request by Customer under this Section 13 would infringe Applicable Laws.
##### 14. Anonymization. Customer agrees that streamB is permitted to Process the Customer Personal Data/Personal Information in order to create Anonymized Data, which streamB is entitled to retain and use for its own purposes. Customer further agrees that in the event that it requires streamB to delete Customer Personal Data/ Personal Information, including under Section 13, the deletion of the Customer Personal Data/Personal Information may be effectuated and deemed complete through an anonymization process resulting in Anonymized Data.
##### 15. Cookies. Customer shall not place, or cause to be placed, a streamB Cookie on an End User’s computer, mobile phone or other terminal device unless it has fulfilled its obligations under Applicable Laws, including collecting such End User’s consent which consent complies with the requirements of Applicable Laws, including applicable Data Protection Laws (a “Cookie Consent”). Customer shall maintain appropriate records of Cookie Consents that it collects and shall provide streamB with evidence of any Cookies Consent as requested by streamB from time to time. Customer acknowledges that servers owned and operated by third parties may be used in connection with advertisement targeting, delivery, measurement and reporting hereunder, including as may be required by advertisers, and that streamB and such third parties use cookies, beacons and other technologies in connection with the foregoing. Customer agrees to disclose in the privacy policies of each property that technologies such as cookies and web beacons may be used on such property by third party advertising companies to determine End User interests and characteristics, and deliver advertising based on those interests and characteristics, and that End Users may visit http://www.aboutads.info and http://www.networkadvertising.org (or other industry standard organization as approved by streamB) for more information about such practices, and how to opt-out from the use of such technologies. Customer shall observe any streamB requests to comply with any laws, rules, regulations, industry self-regulatory efforts or best practices relating to End User privacy.
##### 16. Miscellaneous. **a) Conflicts**. In the event of any conflict between this Addendum and the Principal Agreement between the Parties, these terms will govern solely with respect to the subject matter hereof.
**b) Changes in Data Protection Laws**. streamB may notify the Customer in writing from time to time of any amendments to this Addendum resulting from a change in Applicable Laws, including Data Protection Laws, including the generality of the foregoing, any variations which are:
1. required as a result of any changes to UK Applicable Laws, including Data Protection Laws, following any exit of the UK from the EU, or 2. required to take account of any new data transfer mechanisms for the purposes of Section 8. Any such amendments shall take effect thirty (30) days after written notice is sent by streamB.
**c) Applicable Laws**. This Addendum is subject to the legal provisions stipulated above in Section 1.2.
**d) Governing Law and Jurisdiction**. This Addendum and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of [Germany] for Customers that are legally incorporated in a country of the EEA and in accordance with the laws of Ontario for Businesses that are legally incorporated elsewhere. The parties hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of [Germany] for Customers that are legally incorporated in a country of the EEA, the courts of Ontario for Businesses that are legally incorporated elsewhere, and all courts competent to hear appeals therefrom.
**e) Severance**. If any provision, or portion thereof, of this Addendum is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will: 1. not impair or affect the validity, legality, or enforceability of the remaining provisions of this Addendum, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct and 2. amended as necessary to ensure its validity and enforceability, while preserving the intentions of the Parties as closely as possible.
**f) Supersedes Previous Agreements**. This Addendum, including all Exhibits hereto, constitutes the entire understanding between streamB and Customer relating to the subject matter hereof and supersedes and cancels all prior written and oral agreements and understandings with respect to the subject matter of this Addendum.
In accordance with the Principal Agreement by and between Customer and streamB, streamB Processes Personal Data/Personal Information for the purposes of providing the Services to Customer and complying with other reasonable written instructions provided by the Customer, including instructions given through the terms of the Principal Agreement, or via configuration of the Services through the Portal, where such instructions are consistent with the terms of the Principal Agreement.
These Data Processing Instructions describe Customer’s instructions relating to the data Processing activities to be carried out by streamB under the Principal Agreement. Any capitalized terms used herein and not defined herein shall have the meaning set out in the Principal Agreement and/or in the Data Processing Addendum.
##### 1. Subject Matter. The subject matter of the data Processing includes the Services described in the Principal Agreement, including streamB’s provision of the digital audio content delivery, monetization, analytics and reporting services to Customer.
##### 2. Duration. streamB shall Process Personal Information/Personal Data during the term of the Principal Agreement.
##### 3. Authorized Processing Activities. Customer instructs and authorizes streamB to Process Personal Information/Personal Data for the purposes of providing Customer the digital audio content delivery, analytics and reporting services pursuant to the Principal Agreement, in particular: 1. providing Customer with listener analytics reports related to the performance of the Services, as well as to provide Customer with copies of traffic logs, and for purposes of Technical Support streamB provides to repair errors, faults or other operational or security problems 2. undertaking internal research for technological development and demonstration, and/or 3. generally, improving the Services streamB provides.
Should the Customer be subscribed to Digital Ad Insertion Service, Customer further instructs and authorizes streamB to Process Personal Information/Personal Data for the purposes of providing Customer the digital audio monetization services pursuant to the Principal Agreement, in particular: 4. ensuring that the Data Subject is not exposed to the same advertisement too often or up to a specified amount of occurrences (i.e., frequency capping), 5. ensuring that and/or evaluating whether the Data Subject is exposed to advertisements in the most appropriate language, 6. ensuring that and/or evaluating whether the Data Subject is exposed to advertisements most relevant to the approximate location where the Data Subject is – or believed to be – located, 7. ensuring that and/or evaluating whether Data Subject is exposed to advertisements most relevant to the Data Subject propensity segments to which the Data Subject is believed to belong, 8. auditing and/or validating that the Data Subject is a natural person instead of a robot or a fraudulent system and whether the Data Subject is effectively exposed to one or more advertisements, 9. analyzing, auditing, measuring the exposure, efficacy and effectiveness of the advertisements to which the Data Subject is exposed and consequently selecting more relevant advertisements for the Data Subject, 10. assessing the type of device the Data Subject is believed to be using, and subsequently adapting the formats and contents of advertisements according to the capabilities of the device.
##### 4. Authorized Data, Data Categories and Data Subject Categories. Except when instructed otherwise by the Customer, streamB is authorized to Process the following data: **a) End User Personal Information/Personal Data** 1. streamB processes End User Personal Information/Personal Data included within Customer Streaming Content when providing the Services to Customer. If requested, End User Personal Information/Personal Data may include data such as: Login credentials, 2. Name and contact information, 3. Financial or other transaction information, 4. Other Personal Information/Personal Data relating to the individual Data Subject as configured by Customer.
b) Logged Personal Data StreamB processes Personal Information/Personal Data that is included in log files when performing the Services for Customer (“Logged Personal Data”). Logged Personal Data is Personal Information/Personal Data logged by streamB servers, relating to access to Customer content over the streamB platform by End Users, as well as Personal Information/Personal Data logged in association with End User activity and interaction with web and internet protocol sessions transiting streamB’s servers as part of a Data Subject’s session with the Customer’s web property. Without limiting the generality of the foregoing, Logged Personal Data include such data as: 1. End User IP addresses, 2. URLs of sites visited with time stamps (with associated IP addresses), 3. Geographic location based upon IP addresses.
If the Data Subject accesses a web browser and/or HTTP-connected device in order to use Customer’s site/services, streamB may Process the following data: * End User device operating system and language, * End User device type (aka User-Agent), * End User AdsWizz Cookies OAID, OAGEO, SessionID, * End User AdsWizz listener ID. If the Data Subject uses a mobile device or mobile application in order to use the Customer’s services, streamB may Process the following data: * End User-resettable advertising ID (e.g., IDFA, AAID, MAID), * End User device GPS coordinates, * End User AdsWizz listener ID. If the Data Subject uses a device equipped with AdsWizz Ad Insertion SDK in order to use the Customer’s services, streamB may Process the following data: * End User device listening mode and listening volume, e.g. “headset on”, * End User device accelerometer data and other End User device operating parameters. Among the data described above, the following may be considered Personal Information/Personal Data subject to Applicable Laws, including Data Protection Laws, depending on the jurisdiction where the Customer operates and/or where the Data Subject is located: * End User IP address, * End User AdsWizz listener ID, including End User AdsWizz Cookies containing the AdsWizz listener ID, * End User-resettable advertising ID (e.g., IDFA, AAID, MAID), * End User device GPS coordinates. Except when instructed otherwise by the Customer, streamB is authorized to Process the Personal Information/Personal Data of the following categories of Data Subjects: * End Users accessing the digital audio web content and/or using the web services of Customer, * Employees accessing the web services of streamB.
##### 5. Authorized Sub-Processing and Categories of Sub-Processors. Customer authorizes streamB to engage any Sub-Processor to carry out the Processing of Personal Information/Personal Data as necessary for streamB to provide the Services. Sub-Processors will not engage in prohibited activities as set forth in Section 6 “Prohibited Processing Activities for streamB”.
Customer authorizes streamB to engage the following categories of Sub-Processors for the following purposes: 1. When Customer subscribes to the Digital Ad Insertion Service: the Service provisions a platform connecting to a third-party digital audio advertising solution provider, for campaign delivery, tracking and reporting. 2. When Customer enters into an "AudioMax Publisher Agreement" or an "Integrated Advertising Inventory agreement" with streamB: third-party advertising platforms, Demand-Side Platforms ("DSPs"), and Media Buying Platforms are used for the purpose of receiving bids to buy Customer's media inventory and delivering the most relevant advertisements to the Data Subject, and the Data Subject propensity segments to which the Data Subject is believed to belong. 3. When Customer uses any data-related features of the Digital Ad Insertion Service or subscribes to the AdWave Ad Network Service with streamB: Data Management Platforms and Cross-Device Resolution Platforms are used to confirm that the Data Subject is exposed to advertisements most relevant to the End User propensity segments to which the Data Subject is believed to belong and/or for assessing which devices the Data Subject is believed to be using and subsequently adapting the formats and contents of advertisements according to the capabilities of the devices. 4. When Customer uses "Second Screen" and/or "Retargeting" features of any the Digital Ad Insertion Service or Subscribes to the AdWave Ad Network Service with streamB: Media Exchanges are used for the purpose of exposing the Data Subject to targeted advertisements on properties that may not be owned and/or operated by the Customer itself. 5. When Customer uses the "third party tracking" and/or "brand safety" features of any of the Digital Ad Insertion Service or Subscribes to the AdWave Ad Network Service with streamB: third party ad-impression, viewability, brand safety and/or exposure tracking providers are used for the purpose of auditing, validating that the Data Subject is a natural person that has been or will be exposed to advertisements and is therefore not a robot or a fraudulent system, and/or counting the times the Data Subject is exposed to a particular advertisement.
##### 6. Prohibited Processing Activities for streamB. Except as otherwise instructed by the Customer, for example when Customer instructs streamB to engage Authorized Independent Controllers/Third Parties, streamB shall not Process Personal Information/Personal Data of Customer End Users or Employees for any purpose other than for the purposes of providing the Services as set forth in the Principal Agreement, and shall not: 1. Sell the Personal Information/Personal Data, 2. retain, use, or disclose the Personal Information/Personal Data for any commercial purpose other than for the specific purpose of performing the Services specified in the Principal Agreement, and 3. retain, use, or disclose the Personal Information/Personal Data outside of the direct business relationship between the End User and Customer, except for those Customers subscribed to the Digital Ad Insertion Service, to the extent that the activity is necessary to carry out certain operational Business Purposes for Customers (e.g., frequency capping of AdWave End User across publishers).
##### 7. Prohibited Processing Activities for Customer. Customer shall not pass Personal Information/Personal Data to streamB other than as listed in Section 4, “Authorized Data and Data Categories” without prior agreement in writing from streamB. Customer shall not pass to streamB any directly identifiable data, including Data Subject email address, actual address of residence/domicile, legal name, and/or marital status.
If Customer collects additional Personal Information/Personal Data that is first-party data about Data Subjects/Consumers, which is not listed in Section 4 “Authorized Data and Data Categories” and streamB authorizes Customer to share such first-party data with streamB, Customer shall, along with other legally required disclosures, specify in the Customer’s explicit notice or privacy statement the following information: 1. the nature of the additional first-party data collected, 2. the purpose of sending such additional first-party data to streamB, 3. any link between the purposes for which the Personal Information/Personal Data have been collected and the purposes of the intended further Processing by streamB and its sub-contractors, 4. the possible consequences of the intended further Processing for Data Subjects/Consumers, and 5. the existence of the appropriate safeguards compatible to the purpose of Processing.
##### 8. Prohibited Categories of Data. Both Customer and streamB are prohibited from collecting and/or Processing Personal Data of Data Subjects located in the European Union that contains: (i) racial or ethnic origin, (ii) political opinions, (iii) religious or philosophical beliefs, (iv) trade union membership, (v) genetic data, (vi) biometric data for the purpose of uniquely identifying a natural person, (vii) data concerning health, and/or (viii) data concerning a natural person's sex life or sexual orientation.
##### 9. streamBTracking Providers of Customer’s own Choosing. When Customer elects to send Personal Information/Personal Data to entities of the Customer’s own choosing, which provide tracking services complementing the Services that streamB provides (such entities are hereafter named “Tracking Providers”), such as but not limited to “3rd Party Tracking Providers”, “Brand Safety Providers”, “Attribution Performance Analysis Providers”, “Conversion Analysis Providers”, “Advertising Efficacy Auditors”, “Impression Tracking Providers”, “Viewability Analysis Providers”, “Auditability Analysis Providers”, either directly through the Customer’s own systems or indirectly via streamB’s systems, such Tracking Providers shall not be deemed Sub-Processors to streamB but rather contractors to Customer acting on the Customer’s instructions. In particular, Customer shall be responsible for transmitting consents of Data Subjects as well as do not sell my data/opt-out requests from Consumers to Tracking Providers, regardless of whether or not such consents or do not sell my data/opt-out requests have already been transmitted to streamB.
These Data Processing Instructions describe Customer’s instructions relating to the data Processing activities to be carried out by streamB under the Principal Agreement. Any capitalized terms used herein and not defined herein shall have the meaning set out in the Principal Agreement and/or in the Data Processing Addendum.
##### 1. Subject Matter. The subject matter of the data Processing includes the Services described in the Principal Agreement, including streamB’s provision of the digital audio content delivery, monetization, analytics and reporting services to Customer.
##### 2. Duration. streamB shall Process Personal Information/Personal Data during the term of the Principal Agreement.
##### 3. Authorized Processing Activities. Customer instructs and authorizes streamB to Process Personal Information/Personal Data for the purposes of providing Customer the digital audio content delivery, analytics and reporting services pursuant to the Principal Agreement, in particular: 1. providing Customer with listener analytics reports related to the performance of the Services, as well as to provide Customer with copies of traffic logs, and for purposes of Technical Support streamB provides to repair errors, faults or other operational or security problems 2. undertaking internal research for technological development and demonstration, and/or 3. generally, improving the Services streamB provides.
Should the Customer be subscribed to Digital Ad Insertion Service, Customer further instructs and authorizes streamB to Process Personal Information/Personal Data for the purposes of providing Customer the digital audio monetization services pursuant to the Principal Agreement, in particular: 4. ensuring that the Data Subject is not exposed to the same advertisement too often or up to a specified amount of occurrences (i.e., frequency capping), 5. ensuring that and/or evaluating whether the Data Subject is exposed to advertisements in the most appropriate language, 6. ensuring that and/or evaluating whether the Data Subject is exposed to advertisements most relevant to the approximate location where the Data Subject is – or believed to be – located, 7. ensuring that and/or evaluating whether Data Subject is exposed to advertisements most relevant to the Data Subject propensity segments to which the Data Subject is believed to belong, 8. auditing and/or validating that the Data Subject is a natural person instead of a robot or a fraudulent system and whether the Data Subject is effectively exposed to one or more advertisements, 9. analyzing, auditing, measuring the exposure, efficacy and effectiveness of the advertisements to which the Data Subject is exposed and consequently selecting more relevant advertisements for the Data Subject, 10. assessing the type of device the Data Subject is believed to be using, and subsequently adapting the formats and contents of advertisements according to the capabilities of the device.
##### 4. Authorized Data, Data Categories and Data Subject Categories. Except when instructed otherwise by the Customer, streamB is authorized to Process the following data: **a) End User Personal Information/Personal Data** 1. streamB processes End User Personal Information/Personal Data included within Customer Streaming Content when providing the Services to Customer. If requested, End User Personal Information/Personal Data may include data such as: Login credentials, 2. Name and contact information, 3. Financial or other transaction information, 4. Other Personal Information/Personal Data relating to the individual Data Subject as configured by Customer.
b) Logged Personal Data StreamB processes Personal Information/Personal Data that is included in log files when performing the Services for Customer (“Logged Personal Data”). Logged Personal Data is Personal Information/Personal Data logged by streamB servers, relating to access to Customer content over the streamB platform by End Users, as well as Personal Information/Personal Data logged in association with End User activity and interaction with web and internet protocol sessions transiting streamB’s servers as part of a Data Subject’s session with the Customer’s web property. Without limiting the generality of the foregoing, Logged Personal Data include such data as: 1. End User IP addresses, 2. URLs of sites visited with time stamps (with associated IP addresses), 3. Geographic location based upon IP addresses.
If the Data Subject accesses a web browser and/or HTTP-connected device in order to use Customer’s site/services, streamB may Process the following data: * End User device operating system and language, * End User device type (aka User-Agent), * End User AdsWizz Cookies OAID, OAGEO, SessionID, * End User AdsWizz listener ID. If the Data Subject uses a mobile device or mobile application in order to use the Customer’s services, streamB may Process the following data: * End User-resettable advertising ID (e.g., IDFA, AAID, MAID), * End User device GPS coordinates, * End User AdsWizz listener ID. If the Data Subject uses a device equipped with AdsWizz Ad Insertion SDK in order to use the Customer’s services, streamB may Process the following data: * End User device listening mode and listening volume, e.g. “headset on”, * End User device accelerometer data and other End User device operating parameters. Among the data described above, the following may be considered Personal Information/Personal Data subject to Applicable Laws, including Data Protection Laws, depending on the jurisdiction where the Customer operates and/or where the Data Subject is located: * End User IP address, * End User AdsWizz listener ID, including End User AdsWizz Cookies containing the AdsWizz listener ID, * End User-resettable advertising ID (e.g., IDFA, AAID, MAID), * End User device GPS coordinates. Except when instructed otherwise by the Customer, streamB is authorized to Process the Personal Information/Personal Data of the following categories of Data Subjects: * End Users accessing the digital audio web content and/or using the web services of Customer, * Employees accessing the web services of streamB.
##### 5. Authorized Sub-Processing and Categories of Sub-Processors. Customer authorizes streamB to engage any Sub-Processor to carry out the Processing of Personal Information/Personal Data as necessary for streamB to provide the Services. Sub-Processors will not engage in prohibited activities as set forth in Section 6 “Prohibited Processing Activities for streamB”.
Customer authorizes streamB to engage the following categories of Sub-Processors for the following purposes: 1. When Customer subscribes to the Digital Ad Insertion Service: the Service provisions a platform connecting to a third-party digital audio advertising solution provider, for campaign delivery, tracking and reporting. 2. When Customer enters into an "AudioMax Publisher Agreement" or an "Integrated Advertising Inventory agreement" with streamB: third-party advertising platforms, Demand-Side Platforms ("DSPs"), and Media Buying Platforms are used for the purpose of receiving bids to buy Customer's media inventory and delivering the most relevant advertisements to the Data Subject, and the Data Subject propensity segments to which the Data Subject is believed to belong. 3. When Customer uses any data-related features of the Digital Ad Insertion Service or subscribes to the AdWave Ad Network Service with streamB: Data Management Platforms and Cross-Device Resolution Platforms are used to confirm that the Data Subject is exposed to advertisements most relevant to the End User propensity segments to which the Data Subject is believed to belong and/or for assessing which devices the Data Subject is believed to be using and subsequently adapting the formats and contents of advertisements according to the capabilities of the devices. 4. When Customer uses "Second Screen" and/or "Retargeting" features of any the Digital Ad Insertion Service or Subscribes to the AdWave Ad Network Service with streamB: Media Exchanges are used for the purpose of exposing the Data Subject to targeted advertisements on properties that may not be owned and/or operated by the Customer itself. 5. When Customer uses the "third party tracking" and/or "brand safety" features of any of the Digital Ad Insertion Service or Subscribes to the AdWave Ad Network Service with streamB: third party ad-impression, viewability, brand safety and/or exposure tracking providers are used for the purpose of auditing, validating that the Data Subject is a natural person that has been or will be exposed to advertisements and is therefore not a robot or a fraudulent system, and/or counting the times the Data Subject is exposed to a particular advertisement.
##### 6. Prohibited Processing Activities for streamB. Except as otherwise instructed by the Customer, for example when Customer instructs streamB to engage Authorized Independent Controllers/Third Parties, streamB shall not Process Personal Information/Personal Data of Customer End Users or Employees for any purpose other than for the purposes of providing the Services as set forth in the Principal Agreement, and shall not: 1. Sell the Personal Information/Personal Data, 2. retain, use, or disclose the Personal Information/Personal Data for any commercial purpose other than for the specific purpose of performing the Services specified in the Principal Agreement, and 3. retain, use, or disclose the Personal Information/Personal Data outside of the direct business relationship between the End User and Customer, except for those Customers subscribed to the Digital Ad Insertion Service, to the extent that the activity is necessary to carry out certain operational Business Purposes for Customers (e.g., frequency capping of AdWave End User across publishers).
##### 7. Prohibited Processing Activities for Customer. Customer shall not pass Personal Information/Personal Data to streamB other than as listed in Section 4, “Authorized Data and Data Categories” without prior agreement in writing from streamB. Customer shall not pass to streamB any directly identifiable data, including Data Subject email address, actual address of residence/domicile, legal name, and/or marital status.
If Customer collects additional Personal Information/Personal Data that is first-party data about Data Subjects/Consumers, which is not listed in Section 4 “Authorized Data and Data Categories” and streamB authorizes Customer to share such first-party data with streamB, Customer shall, along with other legally required disclosures, specify in the Customer’s explicit notice or privacy statement the following information: 1. the nature of the additional first-party data collected, 2. the purpose of sending such additional first-party data to streamB, 3. any link between the purposes for which the Personal Information/Personal Data have been collected and the purposes of the intended further Processing by streamB and its sub-contractors, 4. the possible consequences of the intended further Processing for Data Subjects/Consumers, and 5. the existence of the appropriate safeguards compatible to the purpose of Processing.
##### 8. Prohibited Categories of Data. Both Customer and streamB are prohibited from collecting and/or Processing Personal Data of Data Subjects located in the European Union that contains: (i) racial or ethnic origin, (ii) political opinions, (iii) religious or philosophical beliefs, (iv) trade union membership, (v) genetic data, (vi) biometric data for the purpose of uniquely identifying a natural person, (vii) data concerning health, and/or (viii) data concerning a natural person's sex life or sexual orientation.
##### 9. streamBTracking Providers of Customer’s own Choosing. When Customer elects to send Personal Information/Personal Data to entities of the Customer’s own choosing, which provide tracking services complementing the Services that streamB provides (such entities are hereafter named “Tracking Providers”), such as but not limited to “3rd Party Tracking Providers”, “Brand Safety Providers”, “Attribution Performance Analysis Providers”, “Conversion Analysis Providers”, “Advertising Efficacy Auditors”, “Impression Tracking Providers”, “Viewability Analysis Providers”, “Auditability Analysis Providers”, either directly through the Customer’s own systems or indirectly via streamB’s systems, such Tracking Providers shall not be deemed Sub-Processors to streamB but rather contractors to Customer acting on the Customer’s instructions. In particular, Customer shall be responsible for transmitting consents of Data Subjects as well as do not sell my data/opt-out requests from Consumers to Tracking Providers, regardless of whether or not such consents or do not sell my data/opt-out requests have already been transmitted to streamB.
**Part A**: Sub-Processors Processing Personal Information/Personal Data included in network traffic data associated with the audio sessions delivered through streamB servers when the End User connects to Customer’s audio player or application:
|Sub-processor| Purpose of sub-processing| |--------------|--------| |Hetzner Online GmbH| Cloud servers| |Amazon Web Services, Inc|Cloud servers| |Gigenet|Cloud servers| |OVH|Cloud servers| |100TB|Cloud servers| |Linode|Cloud servers| |Wordpress|Cloud servers| |Rackspace| Webmail / customer email aliases| |Kinsta|Web hosting|
**Part B**: Sub-Processors Processing Personal Information/Personal Data pertaining to streamB clients, partners, service providers and suppliers as part of streamB's general operations:
|Sub-processor| Purpose of sub-processing| |--------------|--------| |Auth0|platform authentication and authorization management| |Formagrid Inc|Internal / External communication| |Twilio Inc.|Alerting| |Intuit Inc.|Corporate Billing| |ZOHO|Windows Encoder probes| |Stripe Inc.|Credit Card payments| |Helpscout| Customer support|
|Sub-processor| Purpose of sub-processing| |--------------|--------| |Hetzner Online GmbH| Cloud servers| |Amazon Web Services, Inc|Cloud servers| |Gigenet|Cloud servers| |OVH|Cloud servers| |100TB|Cloud servers| |Linode|Cloud servers| |Wordpress|Cloud servers| |Rackspace| Webmail / customer email aliases| |Kinsta|Web hosting|
**Part B**: Sub-Processors Processing Personal Information/Personal Data pertaining to streamB clients, partners, service providers and suppliers as part of streamB's general operations:
|Sub-processor| Purpose of sub-processing| |--------------|--------| |Auth0|platform authentication and authorization management| |Formagrid Inc|Internal / External communication| |Twilio Inc.|Alerting| |Intuit Inc.|Corporate Billing| |ZOHO|Windows Encoder probes| |Stripe Inc.|Credit Card payments| |Helpscout| Customer support|
INTEGRATED ADVERTISING PLATFORM AGREEMENT
This Integrated Advertising Platform Agreement, including all Exhibits attached hereto foregoing (the “Agreement”) is entered into by and between leanStream Inc., an Ontario corporation with offices at 340 King Street East, 4th Floor, North Side, Toronto, ON, M5A 1K8 (“streamB”), and the company using the Dynamic Ads Service (“Customer”), and is effective as of the date that Dynamic Ads is enabled in the streamB Portal (the “Effective Date”).
TERMS
WHEREAS streamB is party to an Integrated Advertising Platform Agreement with AdsWizz (as defined below) (the “AdsWizz Agreement”); and
WHEREAS the AdsWizz Agreement provides, among other things, the right for streamB and its customers to access and use Dynamic Ads (as defined below) for the insertion and serving of Advertisements (as defined below) within web sites, mobile properties and/or other online services that are owned or operated by streamB customers and the contents therein; and
WHEREAS streamB wishes to grant, and Customer wishes to accept, the right for Customer to access and use Dynamic Ads for the insertion and serving of Advertisements within the Properties (as defined below), in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the covenants and promises contained in the Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
1.1 “Dynamic Ads” means the Service hosted and made available by streamB that may be used to direct the delivery of Advertisements for display or playback to end users of Properties, as may be modified from time to time.
1.2 “AdsWizz” means the licensor of the Dynamic Ads Service of which streamB is the licensee and Customer is the sub-licensee.
1.3 “Ad Serving Fee” shall have the meaning as specified in Exhibit B.
1.4 “Advertisements” means audio, video, banner, rich media and other advertisements in formats that are supported by Dynamic Ads.
1.5 “AdWave” means the AdsWizz global audio advertising marketplace made available by streamB, through which Customer may choose to make some of or all of its advertising inventory on their Properties available to buyers of Advertisements.
1.6 “Affiliate” as to an entity, means another entity that, directly or indirectly, controls, is controlled by or is under common control with such entity, where “control” means ownership of more than 50% of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of such entity.
1.7 “Buyer” means a third party advertiser, ad network, demand-side platform, or other purchaser of Inventory.
1.8 “CPM” means the cost per thousand Advertisement impressions.
1.9 “Documentation” shall have the meaning as specified in Section 3.1.
1.10 “Fees” shall have the meaning as specified in Section 4.1.
1.11 “Initial Setup Tasks” shall have the meaning as specified in Section 3.2.
1.12 “Initial Term” shall have the meaning as specified in Section 6.1.
1.13 “Integration” means the configuration of the Software that makes available the Properties and the content thereon in accordance with streamB’s specifications for purposes of enabling the insertion and serving of Advertisements by Dynamic Ads within the Properties hereunder.
1.14 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.15 “Materials” shall have the meaning as specified in Section 5.
1.16 “Minimum Monthly Commitment” shall have the meaning as specified in Exhibit B.
1.17 “PII” shall have the meaning as specified in Section 2.7.
1.18 “Service Availability” shall have the meaning as specified in Section 2.4.
1.19 “Primary Account Contact” means the Primary Account Contact specified in the streamB Services Agreement with the Customer.
1.20 “Properties” means web sites, mobile properties and/or other online services that are owned or operated by Customer and the contents therein.
1.21 “Required Update” shall have the meaning as specified in Section 3.3.
1.22 “Software” means: (i) the software development kit, plug-in, javascript, media servers, and/or other software or code that is developed by AdsWizz and provided by streamB (including any Updates) to Customer in connection with the use of Dynamic Ads; and (ii) any other software or code provided by streamB to Customer for purposes of performing the Integration.
1.23 “Term” shall have the meaning as specified in Section 6.1.
1.24 “Updates” means any new versions of the Software that may be made available by AdsWizz via streamB to Customer.
2. USE OF DYNAMIC ADS.
2.1 Access. Subject to compliance with all terms and conditions of this Agreement, Customer shall have the right during the Term to access and use Dynamic Ads for purposes of causing the insertion of Advertisements within the Properties, solely in the manner enabled by streamB and in accordance with all applicable documentation. Customer acknowledges that the features and functionality of Dynamic Ads are subject to modification from time to time, insofar as such modification and updates do not remove the core functionality of Dynamic Ads. Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of Dynamic Ads or the Software. Customer shall be responsible for the acts of any person accessing Dynamic Ads using a user name and password issued to Customer by streamB. Customer agrees to use Dynamic Ads in compliance with all applicable laws, rules and regulations. Customer agrees not to launch commercial use of Dynamic Ads with any Property prior to successfully completing streamB’s testing and validation process.
2.2 Restrictions. Customer acknowledges that use of Dynamic Ads is provided for Customer’s benefit only, and agrees not to permit any third party to access Dynamic Ads or to use Dynamic Ads in connection with any web site, mobile property or other online service other than the Properties. Customer may not, may not attempt to, and will not allow or encourage any third party to: (i) copy, distribute, rent, lease, lend, sublicense, transfer or make Dynamic Ads available to any third party or use Dynamic Ads on a service bureau basis, (ii) decompile, reverse engineer, or disassemble Dynamic Ads, (iii) create derivative works based on Dynamic Ads; or (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on Dynamic Ads or during the use and operation thereof.
2.3 Suspension/Termination. streamB may suspend Customer’s access to or use of Dynamic Ads and/or terminate this Agreement at any time if: (i) in the sole discretion of streamB, such action is necessary to prevent Customer equipment or behavior producing degradations that adversely affect the functioning of Dynamic Ads, or to limit AdWizz’s or streamB’s liability; or (ii) Customer attempts to access or use Dynamic Ads in an unauthorized manner, including, without limitation, any attempt to gain access to the accounts of other AdsWizz or streamB customers or use in connection with Properties that infringe third party Intellectual Property Rights. Prior to suspension or termination of service, streamB will provide reasonable advance notice, stating the reason for the planned suspension or termination and the scheduled suspension or termination date, except where immediate action must be taken, in streamB’s sole discretion, to protect AdsWizz or streamB from harm to Dynamic Ads resulting from Customer.
2.4 Availability. streamB shall be responsible for operating the servers that make Dynamic Ads available, and shall use commercially reasonable efforts to maintain availability of the Advertisement delivery functionality of Dynamic Ads (and not the user interface) of at least ninety-nine percent (99.0%), calculated monthly on a per-minute basis and excluding planned maintenance work, when carried out, be scheduled on Monday to Saturday between 12:00 am ET and 5:00 AM ET (9:00pm PT and 2:00am PT) (“Dynamic Ads Availability”). In the event planned maintenance will have an impact on Dynamic Ads availability, Customer will be provided with 3 business days’ notice. Customer acknowledges and agrees that Dynamic Ads may be unavailable from time to time due to (i) malfunction of equipment, software or service not provided by streamB or streamB contracted providers; (ii) errors or unavailability relating to a Buyer; (iii) modifications made by Customer without validation confirmation; or (iv) causes beyond the control of AdsWizz or streamB, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that neither AdsWizz nor streamB shall be liable for any unavailability caused by any of the foregoing. In the event of any failure to meet the Dynamic Ads Availability specified in this Section 2.4 during any calendar month, Customer shall receive a reduction in fees payable hereunder, credited to the next month’s invoice, calculated by multiplying: (a) the number of Advertisements scheduled in actively running advertising campaigns but failed to deliver as a direct result of Dynamic Ads being unavailable (“Downtime”) times (b) the effective CPM rate recognized (counting unsold impressions as $0 eCPM) by Customer for Advertisements served into downloads using Dynamic Ads during the month of Downtime, as reported by Customer’s instance of Dynamic Ads. In the event that the Advertisement delivery functionality of Dynamic Ads does not meet the Dynamic Ads Availability for any reason other than as set forth in the foregoing (i) through (ii) for at least two (2) consecutive months, Customer may, as its sole remedy and streamB’s exclusive liability for unavailability of Dynamic Ads, terminate this Agreement upon written notice to streamB.
2.5 Support. Provided that Customer timely makes all payments due under this Agreement, streamB shall provide support to Customer in accordance with Exhibit A.
2.6 Content. Customer acknowledges and agrees that neither AdsWizz nor streamB has any obligation or ability to monitor or edit the content contained within or made available or linked from any Advertisements or Properties. Customer acknowledges and agrees that it may not use Dynamic Ads in connection with any Properties or Advertisements containing or promoting illegal activities, hate speech, pornography, profanity, obscenity or sexually explicit material.
2.7 Data.
(a) Customer agrees that each of AdsWizz and streamB may use and disclose any data collected in connection with the operation of Dynamic Ads and Customer’s use thereof as follows: (i) AdsWizz and streamB may use such data for purposes of providing Customer with use of Dynamic Ads as provided for hereunder and for AdsWizz’s and streamB’s internal business purposes; (ii) AdsWizz and streamB may disclose such data to its third party service providers that assist it in making Dynamic Ads available as is reasonably necessary for such assistance; (iii) AdsWizz and streamB may disclose such data as may be required by law or legal process; and (iv) AdsWizz and streamB may disclose such data where it is aggregated with data unrelated to Customer and is not identified as relating to Customer; provided that in all instances such data does not include PII. “PII” means personally identifiable information including name, address, phone number, and email address, but for avoidance of any doubt does not include IP address, device ID, or geo-location.
(b) Customer acknowledges and agrees that Customer may only use any and all data collected under this Agreement solely to carry out its obligations under this Agreement and for its own internal usage.
2.8 Marketing. The parties may agree from time to time to cooperate in joint marketing activities or to issue a joint press release at the request of either of them, subject to the prior written consent and approval of the form and substance by both Customer and streamB.
3. LICENSE; INTEGRATION.
3.1 License
(a) Grant. streamB hereby grants to Customer during the Term a limited, non-exclusive, non-transferable, license to: (i) use any Software that streamB may provide, on systems owned or controlled by Customer, for purposes of enabling the Integration, in accordance with all applicable documentation and other instructions and requirements provided by streamB; and (ii) internally use any written documentation relating to the Software that may be provided by streamB, (collectively, “Documentation”) for the sole purpose of exercising the license granted in the foregoing Subsection (i).
(b) Restrictions. Customer has no rights or licenses with respect to the Software or Documentation except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Customer may not (a) copy, modify, distribute, rent, lease, lend, sublicense, transfer or make the Software or Documentation available to any third party, (b) decompile, reverse engineer, or disassemble the Software or Documentation, (c) create derivative works based on the Software or Documentation; or (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Software or Documentation or during the use and operation thereof.
3.2 Integration; Validation. streamB will assist Customer in preparing the Integration by (a) conducting technical need analysis; (b) connecting to AdWave, if applicable; (c) setting up test streams; (d) training Customer; and (e) conducting acceptance testing (the “Initial Setup Tasks”). Other than the Initial Setup Tasks and commercially reasonable assistance to provide basic technical support to Customer in connection with the Integration, Customer is responsible for performing the Integration, at its own expense. Any other substantive implementation assistance requested by Customer shall be pursuant to a separate mutually-agreeable professional services agreement and may be subject to separate fees. Customer shall notify streamB via e-mail sent to care@streamB.com when Customer has completed the Integration. Upon such notice, streamB shall conduct validation testing on the Integration in accordance with streamB’s specifications. Customer shall provide all reasonable cooperation and assistance to streamB in connection with the validation testing, including allowing streamB personnel to access all relevant aspects of Customer’s IT infrastructure. If validation testing is successful, streamB shall provide confirmation to Customer by email. If streamB notifies Customer that validation testing is not successful, Customer shall remediate the Integration in accordance with streamB’s instructions, after which the parties shall re-perform the foregoing validation process until streamB provides Customer a validation confirmation, provided that streamB may terminate this Agreement on written notice to Customer if validation is not successful after three (3) repetitions of the foregoing process. The foregoing validation process shall also be repeated in the event that Customer makes any change to the Properties that may affect the Integration. Customer shall promptly notify streamB of any such change, otherwise Customer acknowledges and agrees that streamB will not be obligated to maintain the Dynamic Ads Availability for such Property. For the avoidance of doubt, validation testing and provision of a validation confirmation solely constitutes confirmation of whether Software has been installed correctly and can communicate with streamB’s servers in accordance with streamB’s testing methodology. Validation testing and the provision of a validation confirmation does not constitute a representation, warranty or guarantee that the Software will perform correctly in every situation or that Customer’s IT infrastructure is adequate for any purpose.
3.3 Software Updates. streamB shall notify Customer by email to the Primary Account Contact or pop-up notification within Dynamic Ads of any Updates that streamB regards as potentially relevant for Customer, and Customer agrees that it shall install any Update that streamB designates as required (a “Required Update”) within two (2) business days after notification by streamB. streamB shall not release more than five (5) Required Updates in any calendar year. Customer shall confirm the success of each Update installation to streamB by email. Nothing herein obligates streamB to develop or make available any Updates.
4. PAYMENT.
4.1 Fees. Customer shall pay streamB the fees as set forth in Exhibit B hereto (the “Fees”).
4.2 Payment Terms. streamB shall invoice Customer either following the end of each calendar month for Customers on the Basic Subscription or at the beginning of each month for all other Customers, with each such invoice covering Fees incurred during such month (which shall be based on streamB’s records). Customer agrees to pay each invoice within thirty (30) days from the date of the invoice. Any amounts due to streamB under this Agreement not received by the date due and not disputed in good faith will be subject to a late fee of 18% per year, or the maximum charge permitted by law, whichever is less. In addition, in the event of any failure by Customer to make payment, Customer acknowledges and agrees that it will be responsible for all reasonable expenses (including collection agents or reasonable attorneys’ fees) incurred by streamB in collecting such amounts. Customer must submit any claims or dispute with respect to any charge to Customer’s account in writing to streamB within thirty (30) days of the receipt of the applicable invoice, otherwise such claim or dispute will be waived and such charge will be final and not subject to challenge.
5. OWNERSHIP. Customer acknowledges that AdsWizz owns all right, title and interest (including all Intellectual Property Rights) in and to the ad serving technology powering Dynamic Ads, and any software, technology, materials and information owned by AdsWizz prior to the Effective Date or created, authored, developed, conceived or reduced to practice after the Effective Date (“Materials”). Nothing herein shall be construed to transfer any of the Materials to Customer. Customer is not required to provide any feedback or suggestions to AdsWizz or streamB. To the extent Customer does provide any such ideas, feedback or suggestions, Customer hereby grants to streamB a perpetual, irrevocable, royalty-free, worldwide right and license to make, have made, use, sell, offer for sale, import, reproduce, modify, distribute, make derivative works and otherwise exploit such idea, feedback or suggestions, with the right to grant sublicenses, including without limitation to AdsWizz.
6. TERM; TERMINATION.
6.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the last day of the month thereof (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive periods of 1 month until the last day of the month in which the Customer disables the Dynamic Ads service (such renewal periods and the Initial Term, collectively the “Term”).
6.2 Termination.
(a) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(b) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
6.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2, 2.6, 2.7, 3.1(b), 4, 5, 6.3, and 7 through 11 shall survive expiration or termination of this Agreement. Without limiting the foregoing, Customer shall destroy all copies of the Software in its possession or control upon any expiration or termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES; INDEMNITY.
7.1 Mutual. Each party represents, warrants, and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid, and binding obligation when executed and delivered.
7.2 Customer. Customer represents, warrants, and covenants to streamB that: (i) it has all rights, title, and interest in and to the Advertisements and Properties in connection with which it utilizes Dynamic Ads that are necessary for such use; (ii) it shall not use Dynamic Ads in relation to any activity that would violate any law, rule or regulation relating to privacy or data protection, including without limitation applicable FTC regulations, COPPA and CAN-SPAM; (iii) it shall not use Dynamic Ads to direct the delivery of display or playback Advertisements to end users outside of Canada and (iv) the Advertisements and Customer Properties do not and will not (w) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party; (x) contain or promote illegal activities, hate speech, pornography, profanity, obscenity or sexually explicit material; (y) contain any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry; or (z) slander, defame, or libel any person.
7.3 Customer Indemnity. Customer shall indemnify, defend, and hold streamB, its Affiliates, or any of their directors, officers or employees harmless from any and all liabilities, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) in connection with any claim or allegation made by a third party due to any breach by Customer of any covenant, representation or warranty made by Customer under this Agreement, including without limitation any breach that causes streamB to be in breach of the AdsWizz Agreement, provided that streamB: (i) promptly notifies Customer in writing of the claim, except that any failure to provide this notice promptly only relieves Customer of its responsibility pursuant to this Section 7.3 to the extent its defense is materially prejudiced by the delay; (ii) grants Customer sole control of the defense and/or settlement of the claim, provided that Customer may not agree to any settlement that admits fault by streamB or purports to bind streamB without streamB’s prior written consent (not to be unreasonably withheld); and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.
8. streamB Indemnity. streamB shall indemnify, defend, and hold Customer, its Affiliates or any of their directors, officers or employees harmless from any and all liabilities, damages and/or costs (including, but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by streamB, in connection with claims alleging that the Software or the technology underlying Dynamic Ads infringes such third party’s United States and Canada patent, copyright, trademark or trade secret, provided that Customer (i) promptly notifies streamB in writing of the claim, except that any failure to provide this notice promptly only relieves streamB of its responsibility pursuant to this Section 8 to the extent its defense is materially prejudiced by the delay, (ii) grants streamB sole control over the defense and settlement of the claim; and (iii) provides all assistance, information and authority reasonably required for the defense and/or settlement of the claim. streamB shall have no obligation with respect to any claim which arises from: (w) any modifications to the Software or Dynamic Ads not made by AdsWizz or streamB; (x) any combination or use of the Software or Dynamic Ads with any technology, product or service not provided by streamB; (y) Customer’s failure to use updated or modified versions of the Software or Dynamic Ads provided by streamB to avoid a claim; or (z) AdsWizz’s or streamB’s compliance with any specifications or requirements provided by Customer. If streamB, in its sole discretion, believes a claim or an adverse judgment in connection with a claim alleging infringement by Dynamic Ads or Software is likely, then streamB may, at its option, (a) obtain a license that allows Customer to continue the use of Dynamic Ads or Software, (b) cause AdsWizz to modify Dynamic Ads or Software so as to be non-infringing, or (c) if neither (a) nor (b) is available to streamB at commercially reasonable terms, terminate this Agreement upon written notice to Customer. This Section 8 sets forth the entire liability of streamB and the sole and exclusive remedy of Customer in the event of any claim that Dynamic Ads or Software infringes any third party Intellectual Property Right. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. STREAMB AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY DYNAMIC ADS WILL BE CORRECT, UNINTERRUPTED, OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. STREAMB DOES NOT WARRANT THE RESULTS OF USE OF DYNAMIC ADS.
9. CONFIDENTIALITY. Each party shall keep confidential all information and materials provided by the other party including all non-public information and know-how of the other party disclosed by any party hereunder in writing, orally, or by drawing or other form (“Confidential Information”). All such information disclosed by either party to the other, whether orally, in writing, by inspection or otherwise, shall be deemed to be Confidential Information of the disclosing party unless otherwise expressly agreed in writing by the party disclosing such information, provided that such information is marked as “confidential” or bears a similar legend or is information that the receiving party knows, or reasonably should have known, is the Confidential Information of the disclosing party. Furthermore, the features and functionality of Dynamic Ads, as well as any information regarding planned modifications or updates thereto or future AdsWizz and streamB products and services shall also constitute Confidential Information of AdsWizz or streamB, as applicable. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, or (iv) developed by the receiving party without reference to Confidential Information. Disclosure of Confidential Information shall not be prohibited if such disclosure: (a) is in response to a valid order of a court ordering such disclosure; provided, however, that the party subject to the court order shall first, to the extent legally permitted, have given at least fifteen (15) days, advance written notice to the other party; or (b) is otherwise required by law. If any party, its employees, or its agents breach or threatens to breach the obligations of this Section 9, the affected party may seek injunctive relief from a court of competent jurisdiction without the posting of a bond, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
10. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO SECTIONS 7.3 OR 8 OR EITHER PARTY’S BREACH OF SECTION 9, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO SECTIONS 7.3 OR 8, EITHER PARTY’S BREACH OF SECTION 9 OR CUSTOMER’S BREACH OF SECTION 2, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAYABLE TO STREAMB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. MISCELLANEOUS.
11.1 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
11.2 Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of streamB, except that Customer may assign its rights and obligations under this Agreement with prior notice to streamB in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction, in each case to a third party other than Wide Orbit, Triton Digital, Radionomy. streamB may not assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that streamB may assign its rights and obligations under this Agreement with prior notice to Customer in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
11.3 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.4 Notices. All notices under the terms of this Agreement shall be given in writing and sent by internationally recognized overnight carrier, via email or pop-up notification within the Dynamic Ads tab with delivery confirmation or shall be delivered by hand to the addresses noted in the preamble of this Agreement. Notices to streamB shall be sent to care@streamB.com to the attention of “streamB Dynamic Ads”. All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by other method.
11.5 Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
11.6 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
11.7 Severability; Waiver; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be executed (i) in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument; and (ii) by facsimile (or PDF) and such facsimile (or PDF) execution will have the same force and effect as an original document with original signatures. This Agreement shall be of no force and effect until it has been executed by all parties hereto.
11.8 Governing Law; Jurisdiction. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with laws of the Province of Ontario, without regard to the actual state or country of incorporation or residence of the parties. Each party hereby irrevocably consents to the exclusive jurisdiction of the courts in the Province of Ontario, in connection with any action arising under this Agreement. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
11.9 Entire Agreement. This Agreement constitutes the complete, final, and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
EXHIBIT A ---------------------------------
Support
1. Initial Setup. streamB shall provide Customer with the following setup services:
* • Initial Training Course: streamB will provide a one (1) hour web-based training session regarding use of Dynamic Ads at a mutually convenient time during streamB’s normal business hours.
* • Kick-Off Meeting: Within the first thirty (30) days after the Effective Date, the parties will participate in a kick-off meeting via teleconference between a streamB project manager and relevant Customer personnel where such project manager will assist Customer in organizing and planning how Customer will deploy its use of Dynamic Ads.
2. Ongoing Support. streamB makes available support personnel via its support portal and email to answer questions relating to the use of Dynamic Ads from 8:00 am to 5:00 pm Eastern Time, Monday through Friday (other than streamB company holidays). By way of example but without limitation such questions may relate to trafficking and campaign set up, reporting functionality, inventory forecasting, tagging questions, and ad delivery performance. Such support shall only be provided to Customer personnel who have participated in the Initial Training Course referenced above.
EXHIBIT B --------------------------------
Fees
“Fees” shall mean:
1. Ad Serving Fees. Customer agrees to pay below ad serving fees, based on usage (the “Ad Serving Fee”).
Per Station audio CPM $0.50 USD / $0.75 CAD
Per Station display CPM $0.0875 USD / $0.114 CAD
Note: Customer will not be charged an Ad Serving Fee for impressions served on AdWave or to DSP’s.
2. The Minimum Monthly Commitment.
The Minimum Monthly Commitment is the minimum amount charged to Customer per station on a monthly basis for the right to use Dynamic Ads and the Software, regardless of the actual usage made during the applicable month.
If the sum of the Ad Serving Fee for a given month is less than the Minimum Monthly Commitment for that month, Customer shall owe streamB the Minimum Monthly Commitment for that month.
If the sum of the Ad Serving Fee for a given month is greater than the Minimum Monthly Commitment for that month, Customer shall owe streamB the Ad Serving Fee.
The “Minimum Monthly Commitment” shall be
a. Ad Serving Fees multiplied by the number of days in the month being charged, for Customers on the Basic Subscription,
b. Ad Serving Fees multiplied by 30.42, for Customers on the Professional Plan,
c. The specified fee for use of Dynamic Ads, for all other Customers
For avoidance of any doubt, the Ad Serving Fees as listed above excludes any additional fees for data, other charges, or third party fees. Customer acknowledges and agrees to pay any additional fees or charges as presented in Dynamic Ads or as otherwise communicated by streamB.
Privacy Policy
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For example, if your COMPANY NAME is "The Uptown Broadcasters Association" we’ll suggest the default as:"the-uptown-broadcasters-association" and your STREAMING URL would be: "https://the-uptownbroadcasters-association.streamb.live/SBxxxxxx".
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