By executing a Platform Access Order (“Order”), a customer (“Company”) of Tatari, Inc. (“Tatari”) agrees to be bound by these Platform Access Terms & Conditions (“T&Cs”). These T&Cs, together with the Order, (collectively the “Agreement”) govern Company’s access to and use of Tatari’s Platform, including any Technology or Services provided by Tatari. In the event of an inconsistency between the Order, these T&Cs, or Tatari’s general Terms of Service (available at www.tatari.tv), the order of precedence shall be: first the Order, then these T&Cs, and then the Terms of Service.
1. Capitalized Terms. Except as otherwise defined herein or in the Order, Capitalized terms shall have the meanings specified in Section 16.
2. Platform. During the Term, and subject to all terms and conditions herein, Tatari will provide Company with the Technology and Services (collectively the “Platform”) as specified in the Order. Any new or different components of the Platform or changes to terms of the Agreement such as scope, fees and Term thereof are subject to Tatari’s prior agreement.
3. Uses & Restrictions
3.1. Subject to all terms and conditions herein, Tatari hereby grants Company a limited, non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use Tatari’s Platform as provided and maintained by Tatari.
3.2. Access to and use of Tatari’s Analytics Platform is conditioned upon Company: (i) providing Tatari with access to the applicable Google Analytics and Mobile Measurement Partner (e.g., AppsFlyer or Adjust) account, (ii) inserting a tracking pixel (as made available by Tatari to Company and including third-party tracking solution) on Company’s web site, and (iii) not altering or deleting the tracking pixel during the Term without Tatari’s express authorization.
3.3. Company’s access to and use of the Analytics Platform shall be strictly limited to Company and Company Agents.
3.4. Company’s access to and use of the Analytics and Media Platforms shall be solely: (i) as authorized by this Agreement and (ii) in compliance with training, instructions and documentation provided by Tatari. Company will not: (a) reverse engineer or attempt to obtain any source code to the Analytics or Media Platforms; (b) provide any third party with access to the Platform, Tatari Data or Viewership Data except as specifically authorized herein; (c) use Tatari Data or Viewership Data for any purpose except as authorized herein in connection with Company’s use of the Platform; (d) use the Platform or any Tatari or Viewership Data outside the Territory, or in connection with any Ad Creative served to any person or device outside the Territory; (e) use any device or software that damages, interferes with or disrupts the Platform; (f) extract, or attempt to extract, Viewership Data from the Platform; (g) match, or attempt to match, Viewership Data with Personal Information, use Viewership Data or any other information derived from Provider Sites during a campaign to retarget consumer or household profiles, (h) directly or indirectly circumvent any Tatari data security or privacy measure, (i) use Ad Creatives in connection with the Platform that violate the applicable Provider’s publishing restrictions or include content that is illegal, promotes illegal activity or infringes on the legal rights of others, or (j) use the Analytics or Media Platforms or any Service in a manner inconsistent with applicable law, including data security and privacy laws.
3.5. Company shall maintain full control of, and be fully responsible and/or liable for, any access to and use of Tatari’s Platform by Company, Company Agents, and any third parties that Company allows to access or use the Platform.
4. Fees, Expenses & Payments
4.1. Fees and Expenses. Tatari will invoice Company, and Company will pay Tatari, fees and expenses as set forth in the Order
4.2. Company is solely responsible for the costs of all Authorized Media Purchases. In all cases, and regardless of any time remaining before payment on an invoice (or portion thereof) is due, Tatari’s execution of Authorized Media Purchases is subject to, and limited by, Company’s positive Working Capital balance. Tatari typically executes Authorized Media Purchases on the Tuesday of the week before media airings and therefore typically requires sufficient Working Capital at that point.
4.3. The Working Capital provisions and requirements herein shall not apply to Media Purchases solely if and where the Parties have entered a prior written agreement for direct billing of Company by Providers.
4.4. If Company directs Tatari to cancel or terminate any previously Authorized Media Purchase, Tatari shall take all appropriate action to do so. To the extent that Providers cannot accommodate such request or Tatari incurs any related expenses, Company agrees to pay and hold Tatari harmless against any un-cancelled Authorized Media Purchases, costs incurred by Tatari as a result of the cancellation, and related Fees.
4.5. Reimbursement or credits by Providers for Authorized Media Purchases that were not aired will be returned to Company’s Working Capital account.
4.6. Except as otherwise limited by law, Tatari will charge an interest rate of 12% per annum for any invoices or other payments overdue for more than 30 days, and Tatari reserves the right to change this interest rate by up to 2% per year in its sole discretion upon notice to Company. Company will be responsible for any costs incurred by Tatari, including reasonable attorney fees, to recover such overdue amounts.
4.7. Company is responsible for all applicable sales, service, business, use, excise, transfer, and similar or other transaction taxes related to the Platform.
5. Relationship between parties
5.1. Company agrees to retain and appoint Tatari as its Agency of Record for Media Purchases during the Term and in the Territory. Company hereby authorizes Tatari, in its capacity as agent for a disclosed principal, to execute on Company’s behalf all insertion orders, purchase orders and similar instruments related to Authorized Media Purchases, and to provide Tatari with written confirmation of Tatari’s agency authority upon request in the form provided as Exhibit A to the Order (“Agency of Record Statement”) or as required by applicable Providers.
6. Intellectual Property.
6.1. Each Party shall retain all of its respective rights, title and interest in and to its respective intellectual property, including but not limited to its software, trademarks, patents, trade secrets, and any other rights that may be known as "moral rights.” Company shall retain all of its respective rights, including intellectual property rights, in and to the Ad Creatives and Company Data, and Tatari shall retain all rights, including intellectual property rights, in and to the Analytics and Media Platforms, Tatari Data, and its proprietary technologies and functions.
6.2. As between Tatari and Company, Company owns and retains all right and title in and to the Company Data. Company hereby grants Tatari a perpetual, irrevocable, royalty-free right and license to use and disclose the Company Data, solely: (i) for the purpose of performing its obligations and enforcing its rights under this Agreement; (ii) for the purpose of developing, operating and improving the Platform, including the Analytics and Media Platforms; (iii) for reporting anonymized statistics about the Analytics and Media Platforms; and (iv) if and as required by court order, law or governmental or regulatory authority.
6.3. As between Tatari and Company, Tatari owns and retains all right and title in and to all Tatari Data. Tatari hereby grants Company a perpetual, irrevocable, royalty-free right and license to use the Tatari Data, solely in connection with its use of the Platform during the Term herein.
7. Confidentiality. The parties wish to protect and preserve the confidential and/or proprietary nature of information and materials that may be disclosed or made available to each other in connection with the Order and any dealings thereunder or subject to these T&Cs (the “Purpose”). In consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:
7.1. “Proprietary Information” means any and all information and material disclosed by the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any other form) that is marked as (or provided under circumstances reasonably indicating it is) confidential or proprietary. Proprietary Information, includes, without limitation, any:
7.1.1. trade secret, know-how, idea, invention, process, technique, algorithm, program (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, research, current and future products or services, strategy and forecast, and
7.1.2. technical, engineering, manufacturing, product, marketing, servicing, financial, personnel, customer, business and other information, forecasts, plans, or materials
of Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities. For the avoidance of doubt, Provider inventory pricing and availability are Proprietary Information.
7.2. Non-Disclosure and Limited Use. Recipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other than to its employees and Company Agents who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any Proprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary Information. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the Purpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Proprietary Information or any portion thereof. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose the existence or substance of the discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto), without the prior written consent of the other party. The obligations of this Section 7.2 with respect to any item of Proprietary Information or with respect to any discussions or agreements between the parties shall survive and continue for five (5) years from the date of Recipient’s receipt of such Proprietary Information; provided, however, that the obligations with respect to trade secrets shall survive and continue indefinitely.
7.3. For the avoidance of doubt, Company shall maintain full control of, and be fully responsible and/or liable for, any access to or use of Tatari’s Confidential Information by any Company Agents or third parties that Company allows to access or use such information.
7.4. Scope. The obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to the extent such Proprietary Information: (a) is or becomes publicly known through no wrongful act or omission of Recipient; (b) was rightfully known by Recipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the Proprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose Proprietary Information to the extent (i) approved by Discloser or (ii) Recipient is legally compelled to disclose such Proprietary Information, provided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable advance notice of any such disclosure and shall cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information. Further, each party may disclose Proprietary Information and the terms and conditions of this Agreement: (A) as required by the applicable securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (B) in confidence, to legal counsel; (C) in confidence, to accountants, banks, investors, potential investors, financing sources, potential financing sources and their respective advisors; and (D) in connection with the enforcement of this Agreement or any rights hereunder.
7.5. Ownership. All Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are reserved and retained by Discloser.
7.6. No Warranty. Except as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to any Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly disclaims all such warranties, including any implied warranties of merchantability and fitness for a particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade.
7.7. Remedies. Recipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information of Discloser will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement without the necessity of posting any bond or other security. Recipient shall notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
7.8. Return of Materials. Upon Discloser’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) constituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary Information in any way for any purpose. Notwithstanding the foregoing, Recipient shall be permitted to retain (subject to compliance with the terms herein) such Proprietary Information as may be required to comply with law, applicable professional obligations and standards, and internal policies. For the avoidance of doubt, anything that is stored on routine back-up media for the purpose of disaster recovery will be subject to destruction in due course, and nothing in this Agreement shall be construed to require either party to search or retrieve information from its back-up tapes or other archives. Additionally, latent data such as deleted files and other non-logical data types, such as memory dumps, swap files, temporary files, printer spool files and metadata that can customarily only be retrieved by computer forensics experts and are generally considered inaccessible without the use of specialized tools and techniques will not be within the requirement for return or destruction of Proprietary Information as set forth by this paragraph.
7.11. Neither Party will issue a press release without the other’s prior consent. Tatari may make incidental reference to Company use of its Platform in Tatari publicity, and Tatari may include Company’s name and logo (as a client of Tatari) in its advertising materials.
7.12. Tatari has the right to publish a case study, subject to Company’s approval, such approval not to be unreasonably withheld.
8. Representations and Warranties
8.1. Each Party represents and warrants that: (i) it has the right and authority to enter into this Agreement and perform all obligations, covenants and promises hereunder; and (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.
8.2. Company represents and warrants that: (i) Tatari has full authority to act on behalf of Company with respect to all Authorized Media Purchases and use of all Company Data as provided herein; (ii) any Ad Creatives and Company Data will not (a) infringe or violate the rights of any third party, including but not limited to any Intellectual Property Rights, or constitute libel, slander, plagiarism, or invasion of privacy of third parties, (b) violate any laws or regulations, including but not limited to laws and regulations relating to consumer privacy or data security, or (c) violate the applicable Provider’s publishing restrictions or include content that is illegal, promotes illegal activity or infringes on the legal rights of others; (iii) Company will make any disclosures and obtain any consents, or ensure the same is done by the applicable third party, as required by applicable laws, regulations or third-party agreement, for the collection, use and sharing of Data as contemplated by this Agreement; (iv) Company holds and will maintain throughout the Term (and hereby grants to Tatari) all rights and permissions reasonably necessary to use the Company Data as provided in this Agreement, and (v) Company will ensure that Company and Company Agents abide by all terms and provisions herein.
9. Disclaimer of warranties. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TATARI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE AND/OR NON-PERFORMANCE, RELIABILITY, USEFULNESS, OR ARISING FROM A COURSE OF PERFORMANCE, DEALING, USAGE, OR TRADE. TATARI DOES NOT GUARANTEE THE EFFECTIVENESS OR PERFORMANCE OF A TELEVISION CAMPAIGN, OR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE ANALYTICS AND MEDIA PLATFORMS.
10. Indemnity. Each Party will indemnify, defend, and hold harmless the other Party, and each of their respective officers, directors, employees, contractors, representatives and agents from and against any claims, damages, losses, liabilities, taxes, costs, expenses, and costs of defense (including reasonable attorneys’ fees and other legal expenses) arising from claims brought by a third party for breach of the representations and warranties in Section 8. The Party seeking indemnification shall promptly notify the other Party in writing of the claim, loss, or liability for which the indemnified Party is seeking indemnification. The indemnifying party shall control the defense of the indemnified claim, including through choice of counsel, provided that the indemnified party may appear at its own expense through its own counsel. The indemnifying party may not settle any indemnified claim without the indemnified party’s prior written consent.
11.Limitation of Liability.
11.1. Tatari shall not be liable to Company or any third party for any loss, cost, damage, expense, or other liability of any kind incurred in connection with Company’s use or display of the Platform, Analytics Platform, or Media Platform, any Ad Creative, or any Data, including, without limitation, any technical malfunction, inputting errors, computer error, corruption or loss of data, or other damage.
11.2. Except for breaches of Sections 3 or 8, and except for indemnification provided under Section 10, neither Party will be liable for any lost profits or for any indirect, special, incidental, punitive or consequential damages arising out of or in connection with this Agreement, however caused, and under whatever claim or theory of liability brought (including, without limitation, claims at law or in equity and under any contract, negligence, or other theory of liability), even if such Party has been advised of the possibility of such damages. Tatari’s maximum aggregate liability for any and all claims arising in relation to this Agreement and/or Platform provided herein under, shall be limited to US $100,000.
12.Term and Termination.
12.1. This Agreement begins on the Effective Date and shall continue on a month-to-month basis until terminated as provided herein (the “Term”).
12.2. Termination for Convenience. Either Party may terminate the Agreement for convenience at any time, provided that it gives at least thirty (30) days’ prior written notice of termination to the other Party.
12.3. Early termination
12.3.1. Upon a material breach, and after the breaching Party has been given ten (10) days written notice and a reasonable opportunity to cure such breach, a non-breaching Party may terminate this Agreement for cause.
12.3.2. Either Party may suspend or terminate this Agreement immediately if the other party makes any assignment for the benefit of creditors or files or has filed against it any petition under bankruptcy law.
12.4. On receipt of notice of termination, Tatari shall complete all Authorized Media Purchases, but not commence work on any new Media Purchases. All other rights and obligations of the Parties shall continue during the notice period.
12.5. Survival. All terms and provisions under this Agreement that should by their nature survive the termination of this Agreement will so survive.
13.1. Notices. All notices will be made in writing and given by personal delivery, overnight courier, facsimile, email or other means of transmission or by certified or registered mail to the primary contacts listed below.
13.2. The address for notice to
13.2.1. Tatari is: Tatari Inc, Legal, 100 Bush Street, Suite 950, San Francisco CA 94104. Email email@example.com
13.2.2. Company is: As set forth in the Order.
14.1. Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written permission of the other. Notwithstanding the foregoing, no prior permission is required in the event that a Party participates in a merger or consolidation, is the subject of a purchase of all, or substantially all, of its assets or capital stock, or sells its business or a line of business, when such assignment provides each party with substantially the same services and commercial benefits as provided by the original Parties under this Agreement, and is not made in whole or in part to a direct competitor of the non-assigning Party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns.
14.2. Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
14.3. Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular.
14.4. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
14.5. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter contained in the Agreement, and supersedes all prior agreements, proposals, service orders, understandings, representations or other communications and may only be amended by mutual written agreement.
14.6. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts-of-law principles. Any legal action or proceeding arising under this Agreement shall be brought exclusively in the federal or state courts located in the State of California, County of San Francisco and the Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive any defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
14.7. No Waiver. Failure of either Party to complain of any act or omission on the part of the other Party shall not be deemed to be a waiver by such Party of any of its rights. Neither consent nor waiver by either Party under any provision shall be deemed consent to any other action or waiver of any right or breach of this Agreement, nor as consent to any future action of the same or any other provision of this Agreement.
15. Definitions. As used herein, the following terms shall have the meanings below:
15.1. “Ad Creative” means the audio-visual work promoting the Company’s business and supplied to Tatari by Company, including all rights, title and interest to it, whether created by Company or a third party.
15.2. “Affiliate” means an entity that directly or indirectly controls or is controlled by or under common control with a party.
15.3. “Agency of Record” means the entity authorized by Company to purchase advertising space or time on its behalf in the form provided as Exhibit A to the Order as amended from time to time.
15.4. “Analytics Platform” means the applications provided by Tatari, and accessed through its website, downloadable data products or API, which measures and reports the effectiveness of a particular TV campaign, executed by Tatari on behalf of Company as Authorized Media Purchases all as updated and maintained by Tatari in its sole discretion.
15.5. “Authorized Media Purchase(s)” means a Media Purchase, whether placed directly by Company through Tatari’s Media Platform, or placed by Tatari as authorized or instructed by Company by phone, in-person, email, SMS, chat or other communications system.
15.6.“Brand(s)” means the Company’s products specifically designated on the Agency of Record in the form provided as Exhibit A to the Order as amended from time to time.
15.7. “Company” means the Party entering this Agreement and identified herein, including its officers, directors, employees, subsidiaries, and affiliates.
15.8. “Company Agent(s)” means any independent contractor, subcontractor, consultant, third-party service provider, representative, or agent engaged or authorized by Company in connection with its use of the Platform on behalf of Company. For the avoidance of doubt, Company Agents shall not include Company or Company’s employees.
15.9. “Data” means all of the following collectively:
15.9.1. “Company Data” means all data provided to Tatari by or on behalf of Company in connection with this Agreement, including, without limitation: (a) data input by or on behalf of Company into the Analytics and Media Platforms; and (b) Ad Creatives.
15.9.2. “Tatari Data” means all data and analytics created by Tatari in connection with Company’s use of the Platform.
15.9.3. “Viewership Data” means data accessed and/or licensed by Tatari from third parties in relation to Company’s use of the Platform, including but not limited to information that ties the airing of an Ad Creative back to the household IP address, captured either through Smart TV, set-top box, streaming publisher, mobile phone or other means.
15.10. “Intellectual Property Rights” means patents, copyrights, trade secrets, trademarks or other proprietary rights.
15.11. “Media Platform” means the applications and functions provided by Tatari, and accessed through its website, downloadable data products or API, that allow the planning of media campaigns and execution of Media Purchases, including on an in-house basis by Company, all as updated and maintained by Tatari in its sole discretion. Access to and use of the Media Platform is subject to Tatari’s prior approval and may, in Tatari’s sole discretion, require training and certification.
15.12. “Media Purchase(s)” means the purchase of television advertising inventory from Providers on behalf of Company for the designated Brand(s) as defined herein. Such inventory includes (i) local, regional and national, (ii) upfront, non-pre-emptible (NPE) and remnant, (iii) cable, broadcast, satellite, national-locals, Addressable and syndicated airings (“Linear TV”), (iv) OTT, Connected TV, Smart TV, and VOD (“Streaming TV”), (v) program integrations, and (vi) any television components of a larger sponsorship or integration with a Provider. Tatari makes no guarantees that the Provider will approve, or effectively run, the selected Ad Creative as part of a Media Purchase, in part or its entirety.
15.13. “Personal Information” shall have the same meaning as that term is defined in applicable privacy and data security laws, including the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020), Cal. Civ. Code § 1798.100 et seq.
15.14. “Provider” means any company selling inventory to distribute or air television Ad Creatives, including but not limited to cable network, broadcasters, OTT, Smart TV, VOD, and satellite companies, as well as aggregators and resellers of the above.
15.15. “Territory” means the United States of America and Canada.
15.16. “Working Capital” means the amount calculated as the money prepaid to and received by Tatari on behalf of Company, minus the sum of: (i) all unpaid invoices, plus (ii) all Authorized Media Purchases not yet executed. As a guideline to running positive Working Capital, Tatari recommends that Company place a deposit with Tatari covering at least three (3) weeks of average weekly Authorized Media Purchases.