SERVICE AGREEMENT

Definitions

TERMS & CONDITIONS

General

• 1.1. Company provides to the Customer the access to the Company’s website and services, located at http://obtainads.com, and the Customer undertakes to pay for the services provided and agrees to the terms and conditions located at: https://obtainads.com/terms.html.
• 1.2. COMPANY provides online advertising creative design services, including without limitation, creatives development, and such other services as Customer may purchase from COMPANY (collectively, the “Services”).

Access to Services

1. 2.1. Access and Authorized Users. Subject to the terms and conditions herein, COMPANY grants Customer and Customer’s employees and other agents (“Authorized Users”) a limited right to access and use the COMPANY website and services at http://obtainads.com (the “COMPANY Platform”) solely for the purpose of ordering Services and communicating with COMPANY in relation to such Service. Customer is responsible for ensuring that its Authorized Users comply with the terms and conditions of the Agreement. Customer will require that its Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized third party. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify COMPANY if any user who has access to a user ID is no longer an employee or Authorized User of Customer.
2. 2.2. Restrictions. Customer agrees that Customer will not itself or allow any third party to: (i) reverse assemble, reverse compile, or reverse engineer the COMPANY Platform, or otherwise attempt to discover any software source code or underlying proprietary information; (ii) remove, efface or obscure any copyright notices, logos, or other proprietary notices or legends (whether COMPANY’s, its suppliers or licensors) from the COMPANY Platform or other materials obtained through the Services; (iii) use the COMPANY Platform in any manner which adversely affects COMPANY or its customers, their data or security, or seek to access the data of any third party without COMPANY’s prior written authorization; or (iv) use the Platform or COMPANY Services in any way that does not comply with all applicable laws, restrictions, and regulations of the United States and any applicable foreign jurisdiction.

Services

1. 3.1. Performance. COMPANY agrees to perform the Services in a professional manner consistent with industry norms and standards, and to use commercially reasonable efforts to comply with the guidelines and specifications given by Customer with respect to the Services.
2. 3.2. Use of Subcontractors. Customer agrees that COMPANY has the right to delegate or subcontract the performance of the all or part of the Services and/or operation of the COMPANY Platform to any number of contractors or agents (“Subcontractors”), provided that COMPANY remains responsible for the performance of the Services including the actions of its Subcontractors, and provided further that Subcontractors will be under confidentiality obligations with respect to Services at least as restrictive as those contained in these Customer Terms.
3. 3.3. Creatives; Customer Content. Customer may develop specified advertising creative materials (the “Creatives”) via the COMPANY Platform. A request for Service shall also specify the preferred completion date for the Video Creative and other necessary information. To facilitate the development and creation of the Creatives by COMPANY or its Subcontractors, Customer shall provide to COMPANY the content, data, text, audio, images, logos and brand or guidelines together with any other materials, reasonably necessary for COMPANY to perform the Services as requested (collectively, “Customer Content”). Customer grants COMPANY and its Subcontractors a limited right
   and license to reproduce, modify, and use Customer Content solely for the purposes of providing Services to Customer and for no other purpose. Customer is responsible for all Customer’s materials, downloaded by the Customer and all copyrights on them in full.
4. 3.4. Customer Content is uploaded via Company’s website and (or) Service to the COMPANY’s remote server. The access to the Customer Content will have only COMPANY and its Subcontractors, no third parties will have the access to the Customer Content. Customer Content and Customer Work Products (creatives) are stored no more than 2 (two) years since the last Customer’s use of service. If the Customer doesn’t use its account more than 2 (two) years Company will have the right to delete any Customer’s materials from the COMPANY’s remote server.
5. 3.5. Customer agrees that COMPANY will have the right to use the Customer’s creatives, created via COMPANY service, as a sample of the service’s work in COMPANY portfolio (in Company’s web-site, social media, etc), as a part of COMPANY marketing campaigns.
6. 3.6. Customer has the right to use Company services only for its internal business activities and is not entitled to grant access to the Service to third parties in whole or in part, including as part of other services provided by Customer to third parties.

Cost of Services and Payment

1. 4.1 In accordance with this Agreement, Company supplies Customer with Subscriptions to the Customer’s services, and Customer agrees to accept and pay for Services in accordance with this Agreement, Invoice and Order Forms to this Agreement (if applicable).
2. 4.1.1. By the Customer’s request, the Company may sign with Customer an Order Form to this Agreement. «Order Form» means an appendix to this Agreement that provides a detailed description of the Company’s Subscriptions purchased by the Customer, their cost, the effective period of each Subscription, payment details, as well as any other terms and conditions that Parties that add and (or) change clauses of this Agreement.
3. 4.1.2. If the Customer agrees with the terms and conditions of this Agreement and no Order Form is required, Parties use the terms and conditions of this Agreement. In this case Company issues the Invoice that provides the information about the Subscriptions purchased by the Customer, their cost, the effective period of each Subscription and the payment details.
4. 4.1.3. The Customer pays for Services through payment systems of third parties (in particular, Stripe Inc.) the relationship between the specified payment systems and the Customer is governed by the terms of the agreement between the Customer and such third parties.
5. 4.2. Subscriptions under this Agreement will be automatically renewed for subsequent periods (years, months), and Customer is obliged to pay for such renewals on the basis of the Invoices issued by Company unless otherwise stated in the relevant Invoices and (or) Order Forms (if applicable).
6. 4.3. The cost of Subscriptions payable by Customer is indicated in Invoices and (or) Order Forms (if applicable) issued by Company to Customer under this Agreement. In order to use the Company’s Platform, Customer shall make 100% payment on the basis of the Company’s Invoices. No pre-paid fees are refundable. All Invoices provided for in this Agreement are due for payment within 3 (three) business days from the date of their issue unless otherwise determined in the Invoices. The Customer accepts all terms and conditions, determined in this Agreement, Invoices and (or) Order Forms (if applicable) by making payments according to the Invoices.
7. 4.3.1. The cost of any additional services is established by the Company and indicated in the Company’s Platform in User’s account, and it may vary depending on the conditions determined with certain Customer. Payment by the Customer for the additional services is made at the current cost of the Service for the corresponding period at the time of payment, according to the information indicated in the Customer’s account or communicated to it in another way. The Customer has the right to use as well download any results of additional services only after full payment for them.
8. 4.4. If the Customer fails to pay for services, the Company stops providing any services to the Customer, all the Customer’s accounts become demo and the Customer will have only the free opportunities available for demo accounts.
9. 4.5. The cost of Subscriptions includes all taxes of the Company’s country, and Company calculates and pays them on its own. Any taxes of the Customer's country are not included in the cost of Subscriptions under this Agreement, and shall be paid by Customer on its own. If Customer is required to withhold taxes of the Customer's country from payments to Company, the value of Subscriptions must be increased so that after withholding the applicable taxes Company receives a net amount equal to the cost of the Subscriptions originally indicated in the Invoice.

Ownership and Intellectual Property Rights

1. 5.1. Ownership of Work Product. As between the Parties, Customer retains all right, title and interest in and to the Customer Content made available to COMPANY and its Subcontractors, including the intellectual property rights therein. Further, provided that Customer adheres to the terms and conditions of the Agreement and upon acceptance of Creatives and complete and full payment of all fees for the Services, then, except with respect to third party images, footages and other stock materials (“Stock Materials”), Customer shall be the owner of the all right, title and interest in and to all original work in Creatives created by COMPANY Platform, including any modifications or derivatives made of Customer Content, and all intellectual property rights therein (collectively the “Work Product”). COMPANY agrees to provide reasonable assistance to Customer, at Customer’s request and expense, to secure Customer’s rights in the Work Product, including the execution of all applications, assignments and all other instruments necessary to secure such rights. For the avoidance of doubt, COMPANY does not and cannot transfer ownership of any Stock Materials incorporated into the Creatives; Stock Materials are subject to a license as provided for in subsection (b) below.
2. 5.2. Stock Materials. Customer agrees that the Work Product created in connection with Services may contain Stock Materials. Subject to the terms and conditions of this Agreement, COMPANY grants Customer a perpetual, non-exclusive, worldwide, non-transferrable, royalty free license to use the Stock Material solely as incorporated in and used with the Work Product for an online digital advertising impression campaign, provided that such use of the Stock Material (i) is only for online advertising purposes and is not an editorial use; (ii) is not defamatory, deceptive, false, misleading, or otherwise a violation of law or the rights of any third parties; (iii) does not depict a person in a way that a reasonable person would find offensive, unflattering or controversial (such as having a sexually transmitted disease or engaging in criminal activity); (iv) does not depict a person to imply the person suffers from a physical or mental infirmity; (v) is not used as a trademark or other brand identifier or to imply any third-party endorsement; (vi) is not in connection with advertisements for pornography, “adult videos,” adult entertainment venues, escort services, or the like; (vii) is not in connection with tobacco products; (viii) is not in connection with advertisements in a political context, such as advertisements for any party, candidate, or elected official, or in connection with any political policy or viewpoint; (viii) is not a stand-alone use of Stock Material apart from the Work Product; or (ix) does not falsely identify another person as the original creator of the Stock Material.
3. 5.3. Customer acknowledges and agrees that use of Stock Materials outside of the foregoing license is prohibited by the Agreement, and such unauthorized use may violate the Intellectual Property rights of the third-party owners of the Stock Materials.

Confidentiality

1. 6.1. Any non-public information disclosed by one Party to the other in connection with the Agreement, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under the Agreement. COMPANY may disclose Confidential Information to Subcontractors and its own third party suppliers or service providers only for purposes related to the Services and the COMPANY Platform, and on the condition that COMPANY has entered into confidentiality agreements with such Subcontractors or third parties that are at least as protective of Customer’s Confidential Information as the terms of this Section. Upon request of the Disclosing Party or upon termination of the Agreement, the Receiving Party shall promptly destroy or return to the Disclosing Party allConfidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Confidential Information does not include information that (i) is part of the public domain; (ii) was already known to or in the receipt of the receiving party at the time of disclosure; (iii) was lawfully disclosed to the receiving party by a third party not otherwise subject to confidentiality; or (iv) was independently developed by a party without use of or reference to the other party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to a lawful court order requesting disclosure provided, however, that (a) the receiving party must give prompt notice to the disclosing party, (b) allow, where practical, the disclosing party to seek protection of such Confidential Information, and (c) the receiving party only discloses Confidential Information that is the subject of the order. Each Party’s confidentiality obligations hereunder shall continue for two years following termination of this Agreement.

Representations and Warranties

1. 7.1. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party together with these Customer Terms, will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
2. 7.2. Customer further represents and warrants that the Customer Content and Customer’s specifications and guidelines and intended use for Creatives do not and will not infringe on third-party Intellectual Property rights, or any other third party rights, or represent false or misleading advertising. Customer also represents and warrants that its hardware, software, data and systems do not contain, and will not introduce or transmit, any virus, worm or other routine that could disable, erase or otherwise harm the COMPANY Platform or its users.

Disclaimer of Warranties

1. 8.1. EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, THE SERVICES AND COMPANY PLATFORM ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

Exclusion of Damages; Limitation on Liability

1. 9.1. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IT IS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, SHALL COMPANY’S TOTAL LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO COMPANY UNDER THE AGREEMENT FOR SERVICES TO WHICH THE CLAIM OR CAUSE OF ACTION RELATES.

Indemnification

1. 10.1. Customer shall indemnify, defend and hold harmless COMPANY, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, liens, fines, penalties, costs and expenses (including reasonable attorneys’ fees and expenses) or other liabilities (“Losses”), arising out of or resulting from any third-party causes of action, suits or claims (“Claims”) arising out of or relating to (i) any act, error, omission, negligence, willful misconduct, gross negligence or criminal acts of Customer; (ii) the Customer Content or Guidelines; or (iii) failure to comply with applicable laws, rules and regulations, whatever the form those Losses take. COMPANY shall provide Customer with prompt notice of any Losses or Claims arising under the Agreement and promptly tender defense of any Claims to Customer. Customer shall not settle any Claims that would require the payment of money by COMPANY, the admission of fault or responsibility by COMPANY or the obligation of COMPANY to take any action or refrain from taking any action without the express written consent of COMPANY, which COMPANY will not unreasonably withhold or delay. COMPANY reserves the right to participate in the defense of any Claim at its expense and with counsel of its choosing.

Termination

1. 11.1. This agreement is considered concluded between Company and Customer from the moment the Customer performs the actions specified in clause 4.3. of this Agreement and is valid for twelve calendar months. If 30 days before the expiry of the Agreement none of the Parties notifies the other Party in writing of its intention to terminate this Agreement, its validity period will automatically be considered extended for each next one (1) calendar year without signing an additional agreement.
2. 11.2. The Parties have the right to terminate the Agreement in the following circumstances:
   - at the initiative of Customer, subject to written notification of Company no later than 45 (forty five) calendar days before the termination date, provided that all fees due for such services at the time of termination remain due in full, and no pre-paid fees are refundable.
   - in the event of a material breach of the terms of this Agreement by one of the Parties, if such breach remains unresolved within 30 days from the date of receipt of such notification by the violating Party (violation regarding the terms of payment must be cured within 10 (ten) days);
   - in case of termination of economic activity of one of the Parties, its liquidation or the introduction of the bankruptcy procedures.

other

Termination

1. 12.1. Governing Law; Jurisdiction and Venue. The Agreement will be governed by and construed in accordance with the laws of the USA, state of Illinois without regard to its conflicts of laws principles. Any cause of action between the Parties shall be brought in a court located in the USA, state of Illinois. Customer waives any objection on the basis of personal jurisdiction and venue.
2. 12.2. Independent Contractors. Nothing contained in the Agreement shall be intended or construed to create a relationship of principal andagent, employer and employee, franchisor and franchisee, partnership or joint venture between the Parties. Except as contemplated by the Agreement, neither Party shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
3. 12.3. Entire Agreement; Amendments. These Customer Terms, together with all schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. The Agreement may only be modified by a written agreement and signed by a duly authorized representative of each Party.
4. 12.4. Assignment. Neither Party will assign this Agreement without prior written consent of the other Party, except that either Party may assign this Agreement or transfer any of its rights under the Agreement to a successor in interest pursuant to a transfer of all or substantially all of its business and assets to which this Agreement relates whether by merger, sale of assets, sale of stock or otherwise. The terms of the Agreement will be binding upon a Party’s successors or authorized assignees.
5. 12.5. Severability. If a court of competent jurisdiction finds any provision or term of the Agreement unenforceable, that provision or term will be modified to best effect the Parties’ intent, and all other terms will continue in force.
6. 12.6. Waivers. The failure to exercise any right provided in the Agreement shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
7. 12.7. Force Majeure. A Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including, without limitation, acts of nature, lockouts, acts or war, terrorism, communication line failures and power failures (a “Force Majeure Event”), provided, however, that such delay in performance will last only as long as the Force Majeure Event continues.