Terms and Conditions

 

INSTICATOR EMBED/ADVERTISING TERMS OF SERVICE

Effective Date: 11/05/2020

IMPORTANT – PLEASE READ CAREFULLY.

 

1. Introduction and Agreement

1.1. These Insticator Embed/Advertising Terms of Service (“Agreement”) represent a binding legal agreement between the legal entity set forth opposite the “Accept” button (“Publisher”) and Insticator, Inc. (“Insticator”), effective as of the date “Accepted” by Publisher (“Commencement Date”). Insticator and Publisher may each be referred to herein as a “Party”, and may be referred to together as the “Parties”.  By clicking the “Accept” button: (a) Publisher agrees that: (i) Publisher’s use of the IES Service is and shall be subject to this Agreement; and (ii) Publisher shall comply with and be bound by this Agreement; and (b) the person clicking the “Accept” button represents and warrants that he or she has been duly authorized to bind Publisher to this Agreement.

1.2. Definitions for certain capitalized terms used in this Agreement are provided below (including in Article 13 at the bottom of this Agreement).

2. IES Service; Restrictions; Rights.

2.1. IES Service.

(a) During the Term (as defined in Section 9.1 below), subject to the terms and conditions of this Agreement, Insticator shall provide the IES Service to Publisher. Notwithstanding anything to the contrary in this Agreement, Insticator shall not have any liability or other responsibility with respect to the content or functionality of any Ad, any Embed, or any site to which a user is directed following a click on an Ad. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that, in the event Insticator is unable to sell any particular Advertising Inventory in, around, and/or through an Embed(s), Insticator may have served to such Ad Inventory an Ad related to Insticator and/or any of its Affiliates or partners.

(b)   As of the Commencement Date, the IES Service may include each of the following features/modules (each of which shall constitute an “Embed” under this Agreement) :

  • Embed (standard/display)
  • Video Embed
  • Advertising (non-Embed)
  • Commenting

Publisher may elect to utilize any feature/module listed above (but not elected by Publisher to use as of the Commencement Date) at any time during the Term by providing Insticator at least five (5) business days’ prior written (including email) notice of such election, subject to Insticator’s written (including email) approval.

2.2. Restrictions. Publisher shall not, shall not attempt to, and shall not assist, encourage or permit any third party to:

(a) Copy, reproduce, modify, translate, sublicense, lease, transfer, resell, disassemble, decompile, reverse engineer, develop any similar product or service based upon, or create derivative works from or in respect of the IES Service or any element (including any Embed) or any part or aspect (including any algorithm(s), technique(s), or non-public feature(s)) of any of the foregoing (including, with respect to Embeds, making any editorial, technical or contextual changes, or changes to any copyright or other proprietary notices or any attribution, credits, artwork or materials displayed therein or associated therewith (it being understood and agreed that, if Publisher wishes to make any change(s) to the Content displayed within an Embed(s), it shall deliver such changed Content to Insticator for uploading to such Embed(s)));

(b) Damage, impair, disable, tamper with, or misappropriate any part or aspect of the IES Service or any element (including any Embed) thereof;

(c) Interfere or attempt to interfere (whether through a device, software, mechanism, routine, or otherwise) with the proper working of any part or aspect of the IES Service, any element (including any Embed) thereof, or any Ad;

(d) Breach any security measure provided by, or circumvent any access or use restrictions of, the IES Service;

(e) Resell, transfer, sublicense, or grant any rights in the IES Service or any element (including any Embed) or any part or aspect (including any algorithm(s), technique(s), or non-public feature(s)) of any of the foregoing;

(f) Sell, sublicense, transfer, assign or grant rights in the IES Service or any element (including any Embed) or any part or aspect (including any algorithm(s), technique(s), or non-public feature(s)) of any of the foregoing;

(g) Without limiting the generality of clause (c) of this Section 2.2, generate fraudulent impressions of or fraudulent clicks on any Ad, or fraudulent downloads or installs from any Ad, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, clicks, downloads, or installs (it being understood and agreed that, without limiting any of Insticator’s rights or remedies, Publisher shall not be entitled to any revenue whatsoever if it engages in any such conduct); or

(h) Edit, modify, or filter any content contained in any Ad, or remove, obscure or minimize any advertisement, or otherwise interfere with the display of any Ad in any way.

Publisher shall promptly notify Insticator if it suspects that any third party may be tampering with, abusing or manipulating any of the Publisher Sites (or any of the software or technology associated therewith), any Ad, or any Embed, or otherwise interfering with the IES Service.

2.3. Rights; Licenses. Subject to the terms and conditions of this Agreement:

(a) Insticator hereby grants to Publisher, and Publisher accepts, a limited, non-transferable, non-sublicensable, non-exclusive right and license to host and display Embeds on the Sites, solely during the Term and solely in connection with its use of the IES Service hereunder.

(b) Publisher hereby grants to Insticator, and Insticator hereby accepts, the limited, non-exclusive rights and licenses solely during the Term:

(i) To access and use the Publisher Materials, solely:

(A) To host, display, distribute, make available, transmit, market and promote Embeds on and through the Publisher Materials in connection with its provision of the IES Service; and

(B) To format, configure, and otherwise modify the Content for the sole purpose of marketing, promoting, hosting, displaying, transmitting and integrating the Content and having Ads served to Advertising Inventory on Publisher’s Sites (in, around, and through Embeds and/or as otherwise made available for Insticator by Publisher); and

(C) Otherwise in connection with its provision of the IES Service hereunder; and

(ii) To sell Advertising Inventory on Publisher’s Sites (either in, around, and/or through an Embed (if/when such Embed is displayed on Publisher’s Sites) or otherwise as made available for Insticator by Publisher on its Sites) and, in connection therewith, have Ads served to such Advertising Inventory; and

(iii) To place and/or recognize cookies and/or other tracking technologies (and to collect Performance Data (as defined in Section 6.1 below) from and/or via such cookies and/or tracking technologies) on Publisher’s users’ browsers and/or associated with such users’ devices (e.g., a mobile advertising identifier).

2.4. Take-Down Rights. Notwithstanding anything to the contrary contained in this Agreement, Insticator shall have the right to remove any Content from a Service(s) (including from any Embed(s)) that (a) violates, or that Insticator reasonably believes violates, any Applicable Laws or any of the Service Policies or (b) infringes or misappropriates, or that Insticator reasonably believes infringes or misappropriates, the rights of any third party (including, without limitation, any intellectual property rights).

2.5. Commenting-Specific Terms and Conditions.  In addition to the other terms and conditions applicable to the Commenting feature/module set forth in this Agreement:

(a) User Generated Content.

(i) Publisher shall be solely responsible for all User-Generated Content (as defined below).

(ii) Without limiting the foregoing obligation or any of Publisher’s other obligations under this Agreement, and without limiting any of Insticator’s rights under this Agreement (including, without limitation, under Section 2.3(b) hereof), Publisher: (x) shall use commercially reasonable efforts to ensure that none of the User-Generated Content (A) violates any Applicable Laws, (B) infringes or misappropriates the rights of any third party, (C) violates any of the Service Policies, (D) may otherwise cause legal liability or financial harm, or (E) may otherwise be objectionable or inappropriate for the IES Service (the foregoing clauses (A) through (E), collectively, the “UGC Prohibitions”); and (y) shall promptly remove any User-Generated Content in the event that Publisher becomes aware that such User-Generated Content may be in violation of any of the UGC Prohibitions..

(b) DMCA.  Without limiting the generality of Section 3.1(b) of this Agreement, any of Insticator’s rights under Section 2.3(b) of this Agreement, or any of Publisher’s other obligations with respect to User-Generated Content, Publisher shall, with respect to the User-Generated Content:

(i) Adopt, implement, and maintain on its Sites a policy that (x) provides for the termination in appropriate circumstances of users and any other subscribers and/or account holders of the Publisher’s Sites who are deemed to be repeat copyright infringers and (y) includes, without limitation, an explanation of how copyright owners can file an infringement claim and what such claim must include under the DMCA (as defined below), and inform such users, subscribers, and account holders of such policy; and

(ii) Remove, or disable access to, infringing material expeditiously upon obtaining knowledge of or becoming aware of such infringement

Exclusivity.  If Publisher has elected to use the Commenting feature/module (either as of the Commencement Date or after the Commencement Date), then, throughout the period for which the Term is in effect with respect to the Commenting feature/module), Insticator shall be the exclusive provider of products and/or services that enable users of and/or visitors to Publisher’s websites, apps, and/or other digital properties to post text, files, images, photos, video, sounds, musical works, works of authorship and/or any other materials in or on such websites, apps, and/or other digital properties.

3. Representations, Warranties and Covenants; Disclaimer.

3.1. Mutual. Each Party represents, warrants and covenants to the other Party that: (a) it has, and throughout the Term shall have, all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder; and (b) its performance under this Agreement shall comply with all Applicable Laws.

3.2. Publisher. Publisher further represents, warrants and covenants to Insticator that: (a) Publisher has, and throughout the Term shall have, all necessary rights, licenses and clearances, for the Content to be used, displayed, developed, reproduced and distributed on and through the IES Service (including the Embeds) as contemplated by this Agreement; and (b) there is no action, suit, claim or proceeding pending or threatened against or affecting the Content or any of the other Publisher Materials.

If Publisher has elected to use the Commenting feature/module (either as of the Effective Date or after the Effective
Date), then: (i) Publisher may not cease utilizing the Commenting feature/module (including, without limitation, remove any code provided by or on behalf of Insticator in connection with the implementation or operation of the Commenting feature/module) until at least the one (1) year anniversary of the date Publisher commences usage of such Commenting feature/module; and (ii) throughout the period for which the IES Term is in effect with respect to the Commenting feature/module (which, for purposes of clarification, shall be at least one (1) year, pursuant to the foregoing clause (i)), Insticator shall be the exclusive provider of products and/or services that enable users of and/or visitors to Publisher’s websites, apps, and/or other digital properties to post text, files, images, photos, video, sounds, musical works, works of authorship and/or any other materials in or on such websites, apps, and/or other digital properties.

4. Fees; Taxes.

4.1. Fees. Provided that Publisher is not in breach of this Agreement, Insticator shall remit to Publisher, with respect to each calendar month during the Term, “Fees” in an amount equal to a percentage of Net Revenue with respect to the sale of Ad Inventory on Publisher’s Sites by Insticator, and the serving of Ads to such sold Advertising Inventory, during such calendar month under this Agreement. Fees hereunder shall be remitted on or around the first business day of each calendar month sixty (60) days after the calendar month in which the applicable Advertising Revenue pursuant to Insticator’s provision of the IES Service hereunder was received by Insticator (each, a “Payment Date”); provided that, if the Fees hereunder due to Publisher in a particular calendar month are equal to fifty U.S. dollars ($50) or less, the payment of such Fees for such calendar month shall be deferred until the first Payment Date thereafter on which the aggregate of the Fees hereunder then due exceeds fifty U.S. dollars ($50).

4.2. Taxes. Each Party shall pay any and all applicable taxes, duties, and other government charges, however designated (including sales, value-added, use, transfer withholding, privilege, excise and other taxes and duties) for which such Party is responsible under Applicable Laws. All payments under this Agreement shall be made without deduction for any taxes, including withholding taxes.

5. Confidential Information.

The receiving Party may use Confidential Information only to exercise its rights and fulfill its obligations under this Agreement and must use reasonable care to protect Confidential Information.  The receiving Party shall not disclose Confidential Information, except to employees and Subcontractors who need to know it and who are obligated to keep it confidential.  No Party may disclose this Agreement (or any of the terms and conditions hereof) to a third party without the prior written consent of the other Party, except (a) to its professional advisors and financing sources, in each case under a strict duty of confidentiality, (b) for purposes of enforcing its rights under this Agreement, and (c) if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to the disclosing Party and using commercially reasonable efforts to provide the disclosing Party with the opportunity to seek a protective order or the equivalent (at the disclosing Party’s expense)).

6. Data and Privacy

6.1. Data. As between the Parties, Publisher shall own all information collected via the IES Service (including via the Embeds and the serving of Ads to users) under this Agreement, including with respect to users and their devices and/or in connection with consumption of Publisher Materials, Ad serving, targeting and performance, and other activity and interactions (collectively, “Performance Data”); provided that: (i) notwithstanding the foregoing, in no event shall Publisher own or have any rights with respect to any Performance Data derived from a user(s)’s activity in or interaction with any of the Non-Commenting Embeds or the content thereof, other than with the Content therein and/or the Ads served pursuant to this Agreement; and (ii) Insticator has, and shall be deemed to have, a perpetual, non-exclusive, sublicensable and transferable right granted by Publisher pursuant to this Agreement to process, use, and disclose (including sell (as defined by CCPA)) the Performance Data in connection with Insticator’s business (including as described in the third sentence of this Section 6.1).  Without limiting any of the provisions of this Agreement (including of this Section 6.1), Performance Data may include usage data and streaming data, including in each case “personal data”/“personal information” (each, as defined by Applicable Laws), including identifiers, characteristics of protected classifications, commercial information, internet or other electronic activity, geolocation data, professional or employment-related information, and education information, and inferences drawn from any of the foregoing (each, as described within the definition of “personal information” under CCPA).  Without limiting any of Insticator’s rights set forth in this Agreement (including this Section 6.1), Insticator may: (a) process, use, and disclose Performance Data: (i) for Insticator’s business purposes, including to provide, operate, maintain, manage, develop, and improve Insticator’s products and services (including the Embeds); (ii) to enforce its rights under this Agreement; and (iii) subject to clause (i) of the proviso in the first sentence of this Section 6.1, as may otherwise be directed by Publisher; and (b) without limiting the foregoing clause (a), otherwise disclose Performance Data: (i) to third parties (including advertisers and attribution partners) as reasonably necessary in connection with the operation of the Embeds and the provision of Insticator’s products and services; (ii) if required by any court order, process, law or governmental agency (after, if permitted, giving reasonable notice to Publisher and using commercially reasonable efforts to provide Publisher with the opportunity to seek a protective order or the equivalent (at Publisher’s expense)); (iii) to its professional advisors and auditors and to actual or potential acquirors, investors, and financing sources, in each case who need to know it and who are obligated to keep it confidential, subject to the terms and conditions of this Agreement; and (iv) in aggregate form, without identifying Publisher, any of Publisher’s Sites or brands, or any user.  Insticator shall collect, use, and disclose Performance Data in accordance with Insticator’s privacy policy.

6.2. Privacy.

(a) Privacy Policy.  Without limiting the generality of Publisher’s obligations under clause (b) of Section 3.1 above, Publisher shall conspicuously post on each of its Sites throughout the Term a privacy policy that: (i) accurately and clearly describes the collection, use, sharing, transfer, and disclosure of data (including with and by third parties), and the categories thereof, including in each case as contemplated by this Agreement (including descriptions of the collection of Performance Data by Insticator and the processing, use, and/or disclosure (including “sale” (as defined by CCPA)) of Performance Data by Insticator for measurement, analytics, and targeted advertising); (ii) contains a link to an easy-to-use mechanism or method that enables the user to opt out of targeted advertising; and (c) to the extent required by Applicable Laws, obtains users’ prior and informed consent to the usage of third-party technology and the collection, processing, use, and disclosure of data derived therefrom and contemplated by this Agreement.

(b) CCPA.  Without limiting any of Publisher’s obligations hereunder (including under Section 3.1(b) above) or under CCPA (including with respect to the consumer rights provided thereunder), in the event that (x) Publisher is a “business” (as defined by CCPA) and (y) any of the Performance Data (excluding Performance Data derived from a user(s)’s activity in or interaction with any of the Non-Commenting Embeds or the content thereof, other than with the Content therein and/or the Ads served pursuant to this Agreement) constitutes “personal information” (as defined by CCPA) relating to California “consumer” (as defined by CCPA) or household (such Performance Data, “Performance CCPA Personal Information”), then:

(i) With respect to Performance CCPA Personal Information hereunder: (x) Publisher is the “business” (as defined by CCPA); and (y) Insticator is a “third party” (as defined by CCPA);

(ii) Throughout the Term, Publisher shall: (x) provide notice of Performance CCPA Personal Information being collected, used, shared, transferred, and disclosed as contemplated hereunder in compliance with CCPA, and shall obtain all rights and consents necessary for such collection, usage, sharing, transfers, and disclosures; (y) without limiting the generality of the preceding clause (x), shall, at or before the point of collection of Performance CCPA Personal Information hereunder on any and all of its Sites, inform California consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information shall be used, in each case in compliance with CCPA; and (z) provide on each of its Sites easy-to-use mechanisms and/or methods that enable each California consumer to opt out of the “sale” (as defined by CCPA) of personal information in compliance with CCPA; and

(iii) If Publisher has received a “Do Not Sell” request from a California consumer: (x) Publisher (A) shall transmit such request to Insticator and (B) shall not “sell” (as defined by CCPA) such consumer’s “personal information” (as defined by CCPA) to Insticator; and (y)(A) any and all of such consumer’s Performance CCPA Personal Information collected hereunder following Publisher’s transmission of such “Do Not Sell” request to Insticator (unless and until Publisher transmits to Insticator such consumer’s subsequent “request to opt-in” to Publisher (if any) under CCPA) (“Post-DNS Personal Information”) shall be deemed to be disclosed by Publisher to Insticator for a “business purpose” (as defined by CCPA), and Insticator shall process such consumer’s Post-DNS Personal Information only on behalf of Publisher and only as necessary to perform such business purpose or for a business purpose permitted to be performed by a “service provider” (as defined by CCPA) under CCPA (including, without limitation, as permitted under Section 999.314 of the regulations under CCPA); and (B) Insticator shall not (I) “sell” (as defined by CCPA) such consumer’s Post-DNS Personal Information or (II) retain, use, or disclose such consumer’s Post-DNS Personal Information (X) for any purpose (including a “commercial purpose” (as defined by CCPA)) other than (1) the specific purpose of performing the IES Service under this Agreement or (2) as otherwise permitted by a service provider under CCPA or (Y) outside of the direct business relationship between Insticator and Publisher; Insticator certifies that it understands the restrictions set forth in this clause (y)(B) of this Section 6.2(b(iii) and shall comply with them.

(c) GDPR. Without limiting any of Publisher’s obligations hereunder (including under Section 3.1(b) above) or under GDPR (including with respect to the consumer rights provided thereunder), in the event that any of the Performance Data (excluding Performance Data derived from a user(s)’s activity in or interaction with any of the Non-Commenting Embeds or the content thereof, other than with the Content therein and/or the Ads served pursuant to this Agreement) constitutes “personal data” (as defined by GDPR) relating to a European Economic Area (“EEA”), United Kingdom (“UK”), or Switzerland data subject (such Performance Data, “Performance GDPR Personal Data”), then:

(i) With respect to Performance GDPR Personal Data, Publisher is the data “controller” that transfers such Performance GDPR Personal Data, and Insticator is a data “controller” that agrees to receive such Performance GDPR Personal Data for further processing in accordance with this Agreement and the terms and conditions of the DPA (as defined in Section 6.2(c)(iii) below);

(ii) Publisher shall provide notice of Performance GDPR Personal Data being collected, used, shared, transferred, and disclosed as contemplated hereunder in compliance with GDPR, and shall obtain all rights and consents necessary for such collection, usage, sharing, transfers, and disclosures; and

(iii) The processing of Performance GDPR Personal Data shall be further governed by that certain Data Processing Addendum attached hereto as Exhibit A (together with all Appendixes and Annexes thereto, “DPA”), which is incorporated by reference into this Agreement solely with respect to Performance GDPR Personal Data.  If there is any conflict between the terms and conditions of the main body of this Agreement and the terms and conditions of the DPA, then, with respect to Performance GDPR Personal Data, the terms and conditions of the DPA shall prevail and control.  Notwithstanding the foregoing or anything to the contrary in this Agreement or the DPA, to the extent Publisher fails to obtain consents from any data subject(s) as required under this Agreement (including under Section 6.2(a) above), Insticator shall not be in breach of this Agreement or the DPA if its use of such data subject(s)’s Performance GDPR Personal Data is consistent with the consent required under this Agreement.

7. Proprietary Rights.

7.1. Intellectual Property; Reservation of Rights.

(a) As between Publisher and Insticator: (i) Publisher owns and shall retain all right, title and interest in and to its intellectual property, including the Publisher Materials and all elements thereof (in each case, including all software, technologies, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes, and know-how contained therein or related thereto, all modifications, updates, enhancements, and derivative works thereof, all documentation and manuals related thereto, and all other parts and aspects thereof) and Publisher’s Marks and all derivatives thereof, and except for the limited rights and licenses granted to Insticator pursuant to this Agreement and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Publisher Materials, Publisher’s Marks or any of Publisher’s rights or interests therein or any other Publisher intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible; and (ii) Insticator owns and shall retain all right, title and interest in and to its intellectual property, including the IES Service and all elements thereof (including the Embeds (excluding the Content and Publisher’s Marks contained therein)) (in each case, including all software, technologies, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes, and know-how contained therein or related thereto, all modifications, updates, enhancements, and derivative works thereof, all documentation and manuals related thereto, and all other parts and aspects thereof) and Insticator’s Marks and all derivatives thereof, and, except for the limited rights and licenses granted to Publisher pursuant to this Agreement and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the IES Service or any elements thereof (including any Embed(s)), any of Insticator’s Marks, or any of Insticator’s rights or interests in any of the foregoing or any other Insticator intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible.

(b) Each Party reserves any and all rights not expressly granted in this Agreement and disclaims all implied licenses, including implied licenses to trademarks, copyrights, trade secrets and patents.

7.2. Marks. Subject to Section 7.1 above, each Party hereby grants to the other Party, and the recipient Party hereby accepts, a limited, non-exclusive, non-transferable right and license to use, reproduce, publish, perform and display, solely during the Term, such granting Party’s Marks solely in connection with its performance under this Agreement and with the display of the Content and in advertising, promotional and marketing materials publicizing the availability of the Content via the IES Service, as specifically approved by such Party; provided that the recipient Party (i) complies with all written (including email) standards, policies, and guidelines provided by or on behalf of the granting Party with respect to the granting Party’s Marks; and (ii) does not do anything to contest or impair any of the rights or interests of the granting Party in any of its Marks.  All uses of Publisher’s Marks shall inure to the benefit of Publisher, and all uses of Insticator’s Marks shall inure to the benefit of Insticator.

8. Publicity; Press Releases.

Each Party hereby grants the other Party the limited right to use the granting Party’s name and logo on customer/vendor lists, informational materials, and its respective websites.  Publisher agrees, if requested by Insticator, to participate and be included in an Insticator case study (including for use and display on Insticator’s website and public distribution).  Subject to the preceding sentences of this Article 8, neither Party shall issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.

9. Term; Termination; Suspension.

9.1. Term; Termination. The term of this Agreement shall commence on the Commencement Date and shall continue for the longer of (i) a period of one (1) year and (ii) if applicable, the period of the initial term with respect to this Agreement otherwise agreed in writing by the Parties (the “Initial Term”), plus all renewal terms (if any) (the Initial Term, collectively with all renewal terms, the “Term”).  Unless either Party provides notice to the other Party at least 60 days prior to the end of the Initial Term or any renewal term of its intention not to renew this Agreement, this Agreement will automatically renew for successive one (1) year terms; provided that, subject to the following proviso, effective on or after the last day of the Initial Term, this Agreement may be terminated by either Party, for any reason or no reason, by providing notice of termination to the other Party; provided further, however, that, unless this Agreement is earlier terminated by Insticator, if Publisher has elected to use the Commenting feature/module, Publisher may not terminate this Agreement with respect to the Commenting feature/module or cease utilizing the Commenting feature/module (including, without limitation, remove any code provided by or on behalf of Insticator in connection with the implementation or operation of the Commenting feature/module) until the later of (a) the one (1) year anniversary of the date Publisher commences usage of such Commenting feature/module and (b) the last day of the Initial Term.

9.2. Suspension.  Insticator may immediately suspend the provision and use of the IES Service under this Agreement on notice to Publisher if, in Insticator’s reasonable discretion, Publisher breaches any of the provisions of Section 2.2 above.

9.3. Effect of Termination.  Notwithstanding cancellation, expiration, or termination of this Agreement, any provisions hereof that by their nature are intended to survive (including Articles 5, 10, 11, 12, and 13, and Sections 4.1 (with respect to Fees generated during the Term), 6.1 (other than clauses (i) and (iii) of the first sentence thereof), and 7.1 hereof), shall survive.

10. Disclaimers; Limitation of Liability.

10.1. Disclaimers.  EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE IES SERVICE (INCLUDING THE EMBEDS) IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THIS SECTION 10.1, INSTICATOR DOES NOT REPRESENT OR WARRANT THAT: (i) ANY ERROR IN THE IES SERVICE (INCLUDING IN ANY OF THE EMBEDS) OR IN ANY AD OR ANY ISSUE RAISED BY PUBLISHER SHALL BE RESOLVED; OR (ii) THE IES SERVICE SHALL (a) PRODUCE A SPECIFIC AMOUNT OR LEVEL OF ADVERTISING REVENUE OR NET REVENUE; (b) BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM(S), OR DATA; OR (c) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

10.2. Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM:

(a) NO EVENT SHALL INSTICATOR BE LIABLE TO PUBLISHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM, EVEN IF INSTICATOR IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE; AND

(b) EXCEPT WITH RESPECT TO (i) ITS FRAUD OR INTENTIONAL MISCONDUCT AND/OR (ii) ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL INSTICATOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS OF THE FEES PAID OR PAYABLE TO PUBLISHER HEREUNDER DURING THE ONE (1) MONTH PRECEDING THE DATE UPON WHICH THE APPLICABLE CLAIM AROSE.

11. Indemnification.

11.1. Indemnification. Publisher shall indemnify, defend, and hold harmless Insticator, its Affiliates, and its and their respective directors, officers, employees, agents, representatives, successors and assigns, from all third-party claims or liabilities (including reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to (a) Publisher’s breach or alleged breach of this Agreement, (b) Publisher’s violation or alleged violation of any of the UGC Prohibitions, or (c) the Publisher Materials’ actual or alleged infringement or misappropriation of a third party’s patent, trademark, trade secret, copyright, or other intellectual property or proprietary right.

11.2. Indemnification Process.  Insticator must (a) promptly notify Publisher in writing of the third-party claim(s) (provided that failure of Insticator to promptly notify Publisher shall not relieve Publisher of its indemnification obligations, except to the extent it has been damaged by the failure), (b) reasonably cooperate with Publisher in the defense of the matter, and (c) give Publisher primary control of the defense of the matter and negotiations for its settlement.  Insticator may at its expense join in the defense with counsel of its choice.  Publisher may enter into a settlement only if it (i) involves only the payment of money damages by the Publisher and (ii) includes a complete release of Insticator; any other settlement shall be subject to written consent of Insticator (not to be unreasonably withheld or delayed.

12. Miscellaneous

12.1. Notices.  All notices under this Agreement must be made in writing (including email) and sent to the attention of the other Party’s “Contact”.  For Publisher, the address, email address, “Contact for Notices” and “Billing Contact” shall be as provided by Publisher in its registration for an IES Service account.  For Insticator: (a) such notices shall be sent to Insticator, 6700 Indian Creek Drive – Unit 1204, Miami, FL 33141, Attn: CEO or to [email protected]; and (b) the Billing Contact is [email protected].  Each Party may change its Contact for Notices and/or Billing Contact by providing not less than five (5) business days’ prior notice to the other Party.  Notice shall be deemed given when delivered.

12.2. Governing Law; Arbitration and Dispute Resolution.

(a) This Agreement is governed by Florida law, excluding its conflicts of law rules.

(b) Arbitration and Dispute Resolution.

(i) The Parties hereby agree that, subject to the provisions of this Section 12.2(b), any and all claims, causes of action, and/or disputes under, arising out of, or relating to this Agreement (each, a “Claim”) shall be settled by final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (as modified by, and subject to, this Agreement); provided, however, that: (A) Claims arising out of or relating to violations of Publisher’s or Insticator’s intellectual property rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, or efforts to interfere with the IES Service in unauthorized ways (including, without limitation, breaches any of the provisions of Section 2.2 above) (each, an “IP Claim”) shall not be subject to such obligation for settlement by final and binding arbitration; and (B) either Party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction (each, a “Small Claim”) in lieu of arbitration.  The arbitrator’s decision and award shall be non-appealable and shall be enforceable in any court of competent jurisdiction.  The arbitration shall take place in Miami-Dade County and State of Florida, unless the Parties agree to video, phone and/or internet connection appearances.  The Parties further agree that: (x) BY ENTERING INTO THIS ARBITRATION PROVISION THE PARTIES ARE WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURI OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (y) EACH PARTY MAY BRING A CLAIM(S) (AS DEFINED ABOVE IN THIS SECTION 12.2(b)(i)) AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING.  Arbitration of any Claim(s) shall be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”; such rules, “AAA Rules”), and shall be administered by the AAA. If the AAA is unavailable, the Parties shall agree to another arbitration provider.  To the fullest extent permitted by applicable law, any evidentiary submission(s) made in arbitration shall be maintained as confidential in the absence of good cause for its disclosure.  Each Party shall be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules.

(ii) If there is a final judicial determination that any particular Claim cannot be arbitrated in accordance with the provisions of this Section 12.2(b), then only that particular Claim (each, a “Non-Arbitrable Claim”), any IP Claim(s), and any Small Claim(s) may be brought in court; all Claims other than Non-Arbitrable Claims, IP Claims not sought to be arbitrated, and Small Claims not sought to be arbitrated remain subject to the provisions of Section 12.2(b)(i) above. THE JURISDICTION AND VENUE FOR ALL NON-ARBITRABLE CLAIMS AND FOR ALL IP CLAIMS NOT SOUGHT TO BE ARBITRATED SHALL BE THE STATE AND FEDERAL COURTS IN MIAMI-DADE COUNTY AND STATE OF FLORIDA, AND THE JURISDISCTION AND VENUE FOR ALL SMALL CLAIMS NOT SOUGHT TO BE ARBITRATED SHALL BE THE SMALL CLAIMS COURTS IN MIAMI-DADE COUNTY AND STATE OF FLORIDA; WITH RESPECT TO NON-ARBITRABLE CLAIMS, SUCH IP CLAIMS, AND SUCH SMALL CLAIMS, EACH OF THE PARTIES HEREBY CONSENTS TO PERSONAL JURISDICTION IN THOSE COURTS AND HEREBY WAIVES ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS. Nothing in this Agreement (including, without limitation, in the preceding sentence or in Section 12.2(b)(i) above) shall limit either Party’s ability to seek equitable relief in any court of competent jurisdiction.

(iii) The Federal Arbitration Act governs the interpretation and enforcement of the arbitration provisions of this Agreement. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of the arbitration provisions of this Agreement or the interpretation of the prohibition of class and representative actions.  If any of these dispute resolution provisions is found unenforceable, that provision shall be severed, and the balance of the dispute resolution provisions shall remain in full force and effect.

12.3. Assignment. Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party; provided, however, that this Agreement may be assigned, without the other Party’s written consent, (a) by either Party to a person or entity that acquires, by sale, merger or otherwise, all or substantially all of such assigning Party’s assets, stock, or business, and (b) by Insticator to an Affiliate of Insticator.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.  Any attempted assignment in violation of this Section 12.3 shall be void and of no effect.

12.4. This Agreement is for the sole benefit of the Parties hereto and their authorized successors and permitted assigns, and nothing herein, express or implied, is intended to, or shall confer upon, any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Each Party may use Subcontractors in connection with its performance under this Agreement; provided that such Party is liable for the acts and omissions of its Subcontractors.

12.5. Insticator may modify this Agreement from time to time.  Please review this Agreement (and the information and policies for which links are provided or referenced in this Agreement) periodically to become aware of any changes that may have occurred; Insticator shall update the Effective Date at the top of the page to help Publisher know when changes to this Agreement have been made.  Except where prohibited by applicable law, rule, or regulation, changes to this Agreement may be made without notice to Publisher.  Publisher’s use of any Service(s) after any changes to this Agreement shall be deemed to constitute Publisher’s approval and acceptance of such changes.  Except as set forth in this Section 12.5, all amendments to this Agreement must be in writing, executed by Insticator, and expressly state that they are amending this Agreement.

This Agreement is the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Failure to enforce any provision of this Agreement shall not constitute a waiver. To the extent permitted by Applicable Laws, the rights and remedies of the Parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the Parties at law or equity.  If any provision of this Agreement is found unenforceable, it and any related provisions shall be interpreted to best accomplish the unenforceable provision’s essential purpose. The term “including” (and its corollaries) means “including, but not limited to,” and is meant to be inclusive, not exclusive. No presumption or burden of proof shall arise favoring or disfavoring either Party by virtue of the authorship of any of the provisions of this Agreement.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

13. Definitions

13.1. “Ad” means a unit of advertising content (which may include display and/or video advertising content).

13.2. “Advertising Inventory” means digital advertising space, including web, application and/or widget-based advertising inventory.

13.3. “Advertising Revenue” means, with respect to (a) a particular period of time (e.g., a calendar month), (b) a particular category of Ads hereunder, and (c) a particular Service (or a particular feature/module of a Service), any and all monetary amounts generated and received by Insticator from the sale of Publisher’s Advertising Inventory with respect to such period of time, such category of Ads, and such Service (or such feature/module, as applicable).

13.4. “Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by, or is under common control with such Party.

13.5. “Applicable Laws” means, collectively, all now existing or hereinafter enacted or amended laws, rules, regulations (including, for purposes hereof, self-regulatory obligations), and/or sanctions programs applicable to a Party’s performance hereunder (including, when, if, and to the extent applicable, each of (a) the California Consumer Privacy Act of 2018 (Title 1.81.5 of the Civil Code of the State of California), together with all effective regulations promulgated thereunder (“CCPA”), (b) the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. §6501 et seq.), together with all effective rules and regulations promulgated thereunder, and (c) each of (i) GDPR and (ii) Directive 2002/58/EC of the European Parliament and of the Council (including as amended by Directive 2009/136/EC of the European Parliament and of the Council) (as the same may implemented into national law), and, in each case, each successor law, regulation, directive, or other text of any of the foregoing).

13.6. “Commenting Embed” means the technology and/or environment made available through use of Insticator’s Commenting feature/module.  For purposes of clarification, the Commenting Embed is an Embed for purposes of this Agreement.

13.7. “Confidential Information” means any information that is disclosed, provided, or made accessible by, or on behalf of, one Party to the other Party in connection with this Agreement, and that is identified as “confidential” or “proprietary” or that, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary (e.g., product or business plans), but does not include information that the receiving Party already knew, becomes public through no fault of the receiving Party, or was independently developed by the receiving Party without reference to the disclosing Party’s confidential information.

13.8. “Content” means any and all content (including audio-visuals, audio content, static or moving images, feeds, contests, games, questionnaires, tests, stories, and graphics, but excluding Ads) related to Publisher’s Sites that is provided by Publisher to be embedded, displayed and/or made available within the Embed or other proprietary technology or environment of Insticator.

13.9. “DMCA” means the Digital Millennium Copyright Act of 1998, together with all effective rules and regulations promulgated thereunder.

13.10. “Embed” means any proprietary technology and/or environment of Insticator that is designed to enable (a) users to (i) access, select, view, click on, read, engage with, and/or otherwise interact with Content, Ads, and other content (which may include video content) and/or (ii) in the case of certain of instances of such technology and/or environment, post User-Generated Content and (b) the serving of Ads to Advertising Inventory in, around, and/or through such technology and/or environment.

13.11. “EU GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

13.12. “GDPR” means each of (i) EU GDPR, (ii) UK GDPR, and (iii) the Swiss DPA.

13.13. “IES Service” means Insticator’s proprietary “Insticator Embed/Advertising Service”, which is a service provided by Insticator to its publisher clients pursuant to which, with respect to and for the particular publisher client, Insticator may (i) sell Advertising Inventory on such publisher client’s Sites (either in, around, and/or through an Embed (if/when such Embed is displayed on such publisher client’s Sites) or otherwise as made available for Insticator by such publisher client on its Sites) and (ii) in connection therewith, have Ads served to such Advertising Inventory.  For purposes of clarification, the term “IES Service” includes, and shall be deemed to include, the Embeds.

13.14. “Marks” mean trademarks, service marks, trade names, brands, trade dress, logos and other distinctive identification and/or proprietary indicia.

13.15. “Net Revenue” means, with respect to (a) a particular period of time (e.g., a calendar month), (b) a particular category of Ads hereunder, and (c) a particular Service (or a particular feature/module of a Service), an amount equal to (i) the Advertising Revenue with respect to such period of time, such category of Ads, and such Service (or such feature/module), minus (ii) the aggregate of usage fees and all third-party fees and costs (including advertising agency and sales commissions/fees, fraud verification, ad serving and/or sales costs/fees, and all other amounts due to any vendor(s) or service provider(s)) incurred in connection with the sale of Advertising Inventory and/or the serving of such category of Ads thereto with respect to such period of time, such category of Ads, and such Service (or such feature/module, as applicable).

13.16. “Publisher Materials” means, collectively, the Sites, the software and other technology associated with the Sites, the Content, and all or other materials provided or made available to Insticator by or on behalf of Publisher under this Agreement.

13.17. “Service Policies” means, collectively, all applicable written (which includes both printed and electronic) rules, terms, conditions, requirements, technical standards and policies of Insticator and third parties that are set forth in the Insticator dashboard/user interface for the applicable Service and/or the any Insticator wiki made available to Insticator’s clients, as the same may be modified from time to time.

13.18. “Site” means, with respect to Publisher, a digital property (e.g., a website or application) owned, operated, and/or controlled by Publisher for which Publisher provides Insticator with Publisher Materials (including the Content and Publisher’s digital assets and technology) with respect thereto, in each case to enable Insticator to make Embeds available and otherwise provide the IES Service thereon.

13.19. “Subcontractor” means, with respect to a Party, a contractor, subcontractor, consultant, third-party service provider, or agent engaged by such Party in connection with its use or provision of products and/or services hereunder.

13.20. “Swiss DPA” means the Federal Data Protection Act of 19 June 1992 (Switzerland) (as the same may be superseded by the Swiss Data Protection Act 2020).

13.21. “UK GDPR” has the meaning ascribed thereto in section 3(10) (as supplemented by section 205(4)) of the UK Data Protection Act 2018 (as amended from time to time).

13.22. “User-Generated Content” means any and all text, files, images, photos, video, sounds, musical works, works of authorship and/or any other materials posted by a user in the Commenting Embed on or in any of Publisher’s Site.

 

EXHIBIT A

DATA PROCESSING ADDENDUM

 

(1) Standard Contractual Clauses.  With respect to Performance GDPR Personal Data, Standard Contractual Clauses (as defined in Section 2(b) below) shall be deemed to apply between Publisher and Insticator as follows:

(a) With respect to Performance GDPR Personal Data relating to an EEA data subject under the EU GDPR, the EU SCCs (as defined in Section 2(b) below), with Publisher as data exporter and Insticator as data importer(s), shall apply, completed as follows:

(i) Module One [Transfers Controller-to-Controller] shall apply;

(ii) In Clause 7, the optional docking clause shall apply;

(iii) In Clause 11, the optional language shall not apply;

(iv) Annex I of the EU SCCs shall be deemed completed with the information with the information set forth on Annex 1 attached to this Exhibit A; and

(v) Annex II of the EU SCCs shall be deemed completed with the information set forth on Annex 1 attached to this Exhibit A.

(b) With respect to Performance GDPR Personal Data relating to a UK data subject under the UK GDPR, the UK SCCs (as defined in Section 2(b) below), with Publisher as data exporter and Insticator as data importer, shall apply, completed as follows:

(i) For so long as Publisher and Insticator are lawfully permitted to rely on the standard contractual clauses for the transfer of personal data to third countries set out in the European Commission’s Decision 2004/915/EC of 27 December 2004 (“Prior C-to-C SCCs”) for transfers of personal data from the UK, the Prior C-to-C SCCs, with Publisher as data exporter and Insticator as data importer, shall apply on the following basis:

(A) In Clause II(h), Insticator selects option (iii);

(B) Annex B of the Prior C-to-C SCCs shall be completed with the information set forth on Annex 1 to this Exhibit A; and

(C) The “Illustrative Commercial Clauses (Optional)” shall not apply.

(ii) If (x) the preceding subsection (b)(i) does not apply but (y) Publisher and Insticator are lawfully permitted to rely on the EU SCCs for transfers of Performance GDPR Personal Data from the UK subject to completion of a “UK Addendum to the EU Standard Contractual Clauses” (“UK Addendum”) issued by the UK Information Commissioner’s Office under s.119A(1) of the Data Protection Act 2018, then:

(A) The EU SCCs, completed as set out above in Section 1(a) of this Exhibit A (shall also apply to transfers of such Performance GDPR Personal Data, subject to clause (B); provided that:

(x) In Clause 17, Option 1 shall apply, and the EU SCCs shall be governed by the laws of England and Wales; and

(y) In Clause 18(b), disputes arising from the EU SCCs shall be resolved by the courts of England; and

(B) The UK Addendum shall be deemed executed between Publisher (as data exporter) and Insticator (as data importer(s)), and the EU SCCs shall be deemed amended as specified by the UK Addendum in respect of the transfer of such Performance GDPR Personal Data.

(iii) If neither the preceding subsection (b)(i) nor the preceding subsection (b)(ii) applies, then Publisher and Insticator shall cooperate in good faith to implement appropriate safeguards for transfers of such Performance GDPR Personal Data as required or permitted by the UK GDPR without undue delay.

(c) With respect to GDPR Personal Data relating to a Switzerland data subject under the Swiss DPA, the EU SCCs shall apply completed as set out above in Section 2(a) of this Exhibit A shall also apply to transfers of such GDPR Personal Data; provided that:

(i) References to ‘Regulation (EU) 2016/679’ shall be interpreted as references to the Swiss DPA;

(ii) References to specific articles and/or sections of ‘Regulation (EU) 2016/679’ shall be deemed replaced with the equivalent articles and/or sections of the Swiss DPA;

(iii) References to ‘EU’, ‘Union’ and ‘Member State’ shall be deemed replaced with ‘Switzerland’;

(iv) References to the ‘competent supervisory authority’ and ‘competent courts’ shall be deemed replaced with the ‘Swiss Federal Data Protection Information Commissioner’ and ‘courts of Switzerland’;

(v)  In Clause 17, Option 1 shall apply, and the EU SCCs shall be governed by Swiss law; and

(vi) In Clause 18(b), disputes arising from the EU SCCs shall be resolved by the courts of Switzerland.

(2) Miscellaneous.

(a) In the event of a conflict between the terms and conditions of this Agreement (including this Exhibit A) and the terms and conditions of the Standard Contractual Clauses, the terms and conditions of the Standard Contractual Clauses shall govern.

(b) For purposes hereof, “Standard Contractual Clauses” means: (i) where the EU GDPR or the Swiss DPA applies, Module One (controller to controller transfers) of the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (together with the Appendix and all Annexes thereto, “EU SCCs” ); and (ii) where the UK GDPR applies, standard data protection clauses (controller to controller transfers) adopted pursuant to or permitted under Article 46 of the UK GDPR (together with all Annexes thereto, and as the same may be replaced with the appropriate version (and module, if applicable) of any superseding UK Standard Contractual Clauses (controller to controller transfers) as may be issued by the UK Information Commissioner’s Office after the Commencement Date, “UK SCCs”).

 

ANNEX 1

DATA PROCESSING DESCRIPTION

 

A. PARTIES

 

Data exporter(s):

Name: The “Publisher” set forth as the legal entity opposite the “Accept” button.

Address: As set forth for “Publisher” in Section 12.1 of the Insticator Embed/Advertising Terms of Service (“Agreement”) to which this Exhibit A and Annex 1 are attached.

Contact person’s name, position and contact details: As set forth for “Publisher” in Section 12.1 of the Agreement.

Activities relevant to the personal data transferred under these Clauses: The use of the IES Service (as defined in the Agreement) pursuant to the Agreement.

Signature and date: This Annex 1 shall be deemed executed by Publisher upon Publisher’s “Acceptance” of the Agreement.

Role (controller/processor): Controller.

 

Data importer(s):

Name: Insticator, Inc.

Address: As set forth for Insticator in Section 12.1 of the Agreement.

Contact person’s name, position and contact details: As set forth for Insticator in Section 12.1 of the Agreement.

Activities relevant to the personal data transferred under these Clauses: The provision of the IES Service pursuant to the Agreement.

Signature and date: This Annex 1 shall be deemed executed by Insticator upon Publisher’s “Acceptance” of the Agreement.

Role (controller/processor): Controller.

 

B. DESCRIPTION OF TRANSFER

 

Categories of data subjects whose personal data is transferred: Users of and/or visitors to Publisher Sites who are EEA, UK, and/or Switzerland data subjects.

Categories of personal data transferred: Performance Data (as defined in the Agreement).

Sensitive data transferred (if applicable): Personal data transferred may include: data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, and/or trade union membership; data concerning health; and/or data concerning a natural person’s sex life and/or sexual orientation.

The frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis): Continuous throughout the duration of the Agreement.

Nature of the processing: In connection with (i) data exporter’s use and data importer’s provision of the IES Service under the Agreement, and (ii) otherwise in accordance with Section 6.1 of the Agreement (including, without limitation, by data importer for Insticator’s business purposes, including to provide, operate, maintain, manage, develop, and improve Insticator’s products and services (including the Embeds)).

Purpose(s) of the data transfer and further processing: In connection with (i) data exporter’s use and data importer’s provision of the IES Service under the Agreement, and (ii) otherwise in accordance with Section 6.1 of the Agreement (including, without limitation, by data importer for Insticator’s business purposes, including to provide, operate, maintain, manage, develop, and improve Insticator’s products and services (including the Embeds)).

The period for which the personal data shall be retained, or, if that is not possible, the criteria used to determine that period: As set forth in data importer’s Privacy Policy (currently located  at https://www.insticator.com/privacy/) and/or for  data importer to comply with its legal obligations, to resolve disputes, and/or to enforce its agreements.

 

C. COMPETENT SUPERVISORY AUTHORITIES

 

Identify the competent supervisory authority/ies in accordance:

  • Where the EU GDPR applies, the competent supervisory authority shall be determined in accordance with Clause 13 of the Standard Contractual Clauses.
  • Where the UK GDPR applies, the competent supervisory authority is the Information Commissioner’s Office.
  • Where the Swiss DPA applies, the competent supervisory authority is the Federal Data Protection and Information Commissioner.