SecondPage Services Agreement (Roku Ad Manager)
 

This SecondPage Services Agreement (“Agreement”) is entered into by and between Bold Screen Media, LLC, a Delaware limited liability company, with its principal offices at 2060-D E. Avenida de Los Arboles #289, Thousand Oaks, CA 91362 through its division SecondPage (“SecondPage”, “we” or “our”)) and the advertiser named in the signature line below or in an account registered by advertiser (“Advertiser” or “you” or “your”) and is effective upon the earlier of (a) your signature of this Agreement, (b) your account creation and registration with SecondPage and (c) your use of SecondPage’s services made available to you pursuant to this Agreement.

This Agreement governs SecondPage’s provision of services (“Services”) to Advertiser where, among other things, SecondPage accesses acts on behalf of Advertiser to access and use Roku Inc.’s (“Roku”) Ad Manager Platform (“Ad Platform”) to purchase advertising inventory and to serve such ads on Roku’s OTT streaming platform (“Roku Platform”) and any other devices, applications, websites, or digital services on which Roku sells advertising inventory (collectively, “Roku Properties”).

1. Account Creation and Registration.
 

a. In order to use Services, you will be required to create and register an account (“Account”) with SecondPage and provide certain information about you (and your company or organization) as prompted by the account registration form.  We have the sole discretion to approve or decline an Account.

b. You represent and warrant that: (a) all required registration information you submit is truthful, complete and accurate; (b) you will maintain the accuracy of such information; (c) you are authorized to form a binding contract with SecondPage; and (d) you are authorized to register and access certain features of the Services on behalf of your company and organization on the terms and conditions set forth herein.  At SecondPage’s  option and without any obligation to do so, SecondPage may verify your information prior to approving (or declining) your Account, including without limitation, validating an Advertiser, including via credit reports or industry classification.
 

c. In setting up an Account, you will not (a) select or use as a user name a name of another person with the intent to impersonate that person; (b) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (c) use as a username a name that is otherwise offensive, vulgar or obscene.  We reserve the right to refuse registration of, or cancel a username in our sole discretion. You are solely responsible for activity that occurs on your Account and will be responsible for maintaining the confidentiality of your password. You will not use another user’s Account without such other user’s express permission. You will immediately notify SecondPage in writing of any unauthorized use of your Account, or other Account related security breach of which you are aware.
 

d. SecondPage may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate your Account, you may do so by following the instructions in the Account or by contacting our accounts department.
 

2. License Grant.
 

You hereby grant SecondPage an exclusive, transferable, worldwide, royalty-free right and license during the designated campaign period to format, reproduce, display, distribute, publish, perform and promote your advertisements, and any and all related artwork, images, graphics, text, video, audio, data, trademarks, logos, URLs or other assets, materials, or information (collectively, an “Ad”), in any size, placement, or location on the Roku Properties and exercise and exploit any and all intellectual property, publicity, and any other proprietary rights embodied in your Ads in connection with your campaigns on the Ad Platform and this Agreement.
 

3. Use of the Platform.
 

a. You are solely responsible for all of the Ads you choose to run through the Ad Platform, including providing all content, materials, assets, and information necessary to create an Ad and place an order with SecondPage for its insertion on the Roku Properties through the Ad Platform (each an "Order”). You are responsible for setting all of your desired parameters for each Ads and/or Order, including the maximum amount you want to spend to be delivered over the course of a campaign (each a "Budget"), the start and end flight date of your Ads(s), and various targeting criteria, each subject to limitations that may be set by Roku from time to time in its sole discretion (including without limitation the number of Ads we can run on your behalf via the Ad Platform). It is your responsibility to monitor your Ads and ensure they are consistent with your objectives. You are solely responsible for any changes to your Ads and/or Orders. Ads will stop delivering upon the earlier of (i) the date your Budget has been reached, or (ii) the scheduled end date for the applicable campaign.  

 

You may set a Budget based on Services tiers selected by you as part of your Account. See pricing options here.

b. The Services may not be used for any purpose not expressly permitted by this Agreement or otherwise prohibited by applicable laws or regulations, including any activity that interferes with or disrupts, damages, disables, or impairs the Services or Ad Platform. We reserve the right to restrict, suspend, revoke, or terminate access to the Services at any time without notice or liability in its sole discretion, including without limitation, if we believe you have breached this Agreement, violated any law or regulation, engaged in other inappropriate conduct, or for any other reason.
 

4. Ad Campaigns.

a. Approval. All Ads are subject to Roku’s review and approval before a campaign can begin and impressions, Installs (as defined below), or Conversions (as defined below) can begin delivering. Approval includes compliance with all Policies (as defined below) and this Agreement, as well as any other issues raised by Roku in its sole discretion. Ads must be submitted to Roku for approval by Second Page via the Ad Platform no less than three (3) business days before the scheduled campaign start date. However, any modifications required for the Ad to comply with Roku’s Policies may result in a delay to the campaign start date. In the event an Ad hasn’t been approved before the campaign start date, we will automatically pause the campaign. If a campaign begins later than its scheduled start date, the end date will not be adjusted, and the number of impressions, Installs, or Conversion delivered during the campaign may be reduced accordingly. A campaign will be automatically canceled in the event an Ad is not approved before the scheduled campaign end date. Neither SecondPage nor Roku has any obligation to back-up, store, retrieve, or return any Ad(s) to you.
 

b. Delivery. Provided that your Ad is approved by Roku, Roku will use commercially reasonable efforts to ensure your Ad is delivered according to your selected criteria, provided that Roku does not guarantee the reach or performance of Ads or delivery of all impressions, Installs or Conversions reflected in your campaign Budget, or that Ads will reach the audience intended. Delivery is subject to availability and may not be continuous. Roku is not responsible for any technical issues that may affect the delivery of Ads or availability of the Roku Properties. Roku reserves the right to reject, pause, suspend, or cancel any Ad and/or Order placed through the Ad Platform for any reason in its sole discretion without any liability to Advertiser or any third party. For purposes of this Agreement and the Ad Platform, neither SecondPage nor Roku makes any commitments regarding editorial adjacency, content adjacency, or competitive separation.
 

c. Policies. All Ads must comply with Roku’s advertising guidelines located at https://docs.roku.com/published/advertisingguidelines/en/us (“Ad Guidelines”) and data guidelines located at https://docs.roku.com/doc/dataguidelines/en-us (“Data Guidelines”), and such other criteria, requirements, and specifications as determined by Roku and communicated to you (collectively, "Policies"). You, and not Second Page nor Roku, are solely responsible for ensuring your Ads comply with all applicable laws, regulations, industry guidelines, as well as Roku’s Policies. Roku may block, reject, revoke, or remove any Ad for any reason at any time, including where Roku determines an Ad is inconsistent with Roku’s Policies, business practices, strategy, standards, or brand. Neither SecondPage nor Roku is responsible for Advertiser’s costs associated with producing or modifying an Ad.  Roku reserves its right to: (i) require modifications to an Ad before approval and to require modifications to any previously approved Ad; (ii) require factual support for any statements or claims in connection with an Ad; (iii) reject any Ad where the product or service could adversely affect the interests of Roku or its users; (iv) revoke approval of an Ad; and (v) waive or make exceptions to the Policies described in this Section in its sole discretion.
 

d. Targeting. Roku may provide Advertiser with the option to target an Ad to a desired audience based on criteria selected by Advertiser as part of the Services, provided however, neither SecondPage nor Roku guarantees Ads will reach the audience targeted and you remain solely responsible for any targeting or trafficking decisions you make. Advertiser may choose whether and in what combination to use targeting criteria, provided that it is Advertiser’s sole responsibility to do so in compliance with applicable law and industry standards. If no targeting criteria is applied, Ad(s) will be served across available inventory at Roku’s discretion.

e. Reporting. Roku may make industry-standard reporting available to help you understand how your Ads perform, provided however, Roku makes no guarantees as to the accuracy, suitability, or reliability of such information (if any). Roku is under no obligation to provide Advertiser with additional information regarding the performance of an Ad or any other aspects of the campaign. All reporting and any data or information contained therein, may only be used for Advertiser’s internal purposes, in accordance with Section 6 below.

f. Cancellation. Roku reserves the right to cancel, pause, or suspend any Ad or campaign in its sole discretion. If Advertiser wishes to cancel or pause a campaign, it must do so directly through SecondPage in order for the request to be effective. If a campaign is cancelled, impressions, Installs, or Conversions will stop delivering and Advertiser will only be charged for the impressions, Installs and Conversions delivered, including during the short period while the cancellation request is processed. If a campaign is paused, impressions, Installs, and Conversions will stop delivering and Advertiser will be charged for all impressions, Installs, and Conversions delivered, provided that Advertiser may also resume the campaign at any time before the scheduled end date. Pausing a campaign will not extend or modify the scheduled campaign end date, and the number of impressions, Installs, or Conversions delivered during the campaign may be reduced accordingly.

g. Make-Goods. Make-goods for under-delivery of impressions, Installs, or Conversions are not available. In the event an Ad under-delivers purchased impressions, Installs, or Conversions, or in the event an Ad or Order is cancelled, a credit will be provided for the unfulfilled portion of your Order where such credit will be indicated in your Account and may be applied by you at a later date for another ad campaign. You agree that the foregoing refund constitutes your sole and exclusive remedy with respect to any under-delivery of impressions, Installs, or Conversions, or cancelled Ads or Orders. For purposes of this Agreement, Advertiser agrees all Ads are deemed 100% viewable.

h. Quality Control. Roku may, but is not obligated to, periodically review Ads in its sole discretion, either before or after they go live, to ensure ongoing compliance with its Policies and SecondPage may, but is not obligated to, periodically review Ads in its sole discretion, either before or after they go live to ensure ongoing compliance with this Agreement, provided however, you expressly acknowledge and agree that the foregoing shall not relieve you of your responsibility to ensure compliance with all applicable laws and regulations and any Ads you run, including any webpages or material that your Ads link to.
 

5. Fees and Billing. 
 

a. Billing. SecondPage may enable you to purchase Ads using various pricing models and/or Service tiers depending on the Ad format and/or Budget, in SecondPage’s sole discretion. Ads may be purchased on a: (i) cost-per-thousand basis (“CPM”), meaning you’ll pay a fixed rate for a certain number of ad impressions; (ii) cost-per-install basis (“CPI”), where you will pay a fixed rate for the number of installs of Advertiser’s application (“Installs”) on the Roku Platform by end-users within a Roku determined Lookback Period (defined below) of exposure to an Ad campaign, where exposure is the later of either the last impression or last-click, or (iii) cost-per-action basis (“CPA”), where you pay a fixed rate for each user that completes a defined action with a Roku determined Lookback Period of exposure to an Ad (each a “Conversion”), where exposure is the later of either the last impression or last-click, as further described in Section 5(b). “Look-back Period” means the period of time after an end-user has been exposed to an Ad within which an Install or other Conversion can be attributed, or matched, to an Ad exposure. All Look-book Periods are subject to change in Roku’s sole discretion. You will only be charged for impressions, Installs, or Conversions actually delivered. All charges are based on Roku's measurement and calculation as to the number of impressions, Installs and Conversions delivered, which is final under this Agreement. All amounts paid for delivered impressions, Installs, and Conversions are non-refundable.
 

b. CPA Campaigns. If Advertiser chooses to run a CPA campaign through this Agreement for purposes of the Ad Platform, the following definitions shall apply:
 

i. “First Time View” is when an end-user has streamed an application on the Roku Platform for the first time for any length of time within a Roku determined Lookback Period of exposure to an Ad campaign.
 

ii. “First Qualified Streaming Session” is the first time in a twelve-month period that an end-user has streamed Advertiser’s application on the Roku Platform for five (5) minutes or more within a Roku determined Lookback Period of exposure to an Ad campaign.
 

iii. “Qualified Streaming Session” is when an end-user has streamed Advertiser’s application on the Roku Platform for five (5) minutes or more within a Roku determined Lookback Period of exposure to an Ad campaign.
 

iv. “Install” is when an end-user installs an Advertiser’s application on the Roku Platform within a Roku determined Lookback of exposure to an Ad campaign.
 

v. “Signup” is when an end-user signs up for a trial or pays for a subscription for an application on the Roku Platform through Roku Pay within a Roku determined Lookback Period of exposure to an Ad campaign. If an end-user both signs up for a trial and subscribes within the Lookback Period, only one Conversion is counted for billing purposes.

vi. “Subscription” is when an end-user pays for a subscription for an application on the Roku Platform through Roku Pay within a Roku determined Lookback Period of exposure to an Ad campaign.

vii. “Trial” is when an end-user successfully signs up for a given trial product on the Roku Platform through Roku Pay, regardless of future subscription or cancellation within a Roku determined Lookback Period of exposure to an Ad campaign.

c. Payment Method. You must provide a credit card or form of payment currently accepted by SecondPage (“Payment Method”) in order to submit a campaign via this Agreement. SecondPage or its third-party payment processor(s) may run one or more payment authorization checks in order to validate the Payment Method. To avoid campaign interruptions, the expiration date associated with the Payment Method should occur after the scheduled end date of any campaigns. By providing a Payment Method, you authorize SecondPage or its payment processor(s) to charge that Payment Method for all amounts due (including applicable taxes) in connection with any campaigns submitted through this Agreement and to store your payment card information and to continue billing the card until your Order(s) has been fulfilled. You represent and warrant that any payment information you submit via this Agreement and/or your Account is true, accurate, and complete to the best of your knowledge.  It is your responsibility to maintain and update your Payment Method information and to promptly notify your bank of any changes to your billing information or the loss, theft, or unauthorized use of any Payment Method. 

d. Payment Failures. If your Payment Method fails, your Ads will be suspended or paused and impressions, Installs, and Conversions will stop delivering. SecondPage may retry charging the Payment Method. In the event Advertiser does not provide a new Payment Method before the scheduled campaign end date, the campaign will be cancelled. Advertiser remains obligated to pay SecondPage for any impressions, Installs, and Conversions delivered and agrees to pay all amounts due. SecondPage may take steps to collect past due amounts using collection mechanisms it deems appropriate and may cancel any current or future campaigns selected on the Account through this Agreement.. You are responsible for paying all amounts billed to your Payment Method, whether or not authorized by you. You will pay all reasonable costs and expenses (including reasonable attorneys' fees) incurred in collecting any late payments. Any disputes about payments made in connection with this Agreement must be submitted in writing within 60 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge unless otherwise required by applicable law.
 

e. Invoices. In the event SecondPage, in its sole discretion, agrees to invoice Advertiser directly for Ads purchased via the Account and this Agreement, unless otherwise agreed by SecondPage in writing, SecondPage will issue the invoice at the end of the calendar month in which the Ads first delivered, and then on a monthly basis, which shall be payable within thirty (30) days of receipt. The invoice(s) shall relate to Ads delivered up to the date indicated, charges for which shall be calculated on a pro-rata basis as determined solely by SecondPage. You shall make all payments due without deduction, whether by way of set-off, counterclaim, discount or otherwise. SecondPage may, but is not obligated to, offer a credit line to select Advertisers who have completed a credit check and agreed to any applicable terms and conditions. SecondPage reserves the right to modify, suspend or cancel credit lines, if any, at any time with or without notice for whatever reason. Any extension of an approved credit line will be at SecondPage’s sole discretion and may be subject to further credit review. Interest charges and collection fees may be applied to past due amounts. If SecondPage has not received payment from you (if applicable) within thirty (30) days from the due date of the invoice, SecondPage may consider the invoice to be delinquent. Advertiser shall be liable to SecondPage for all unpaid billings in connection with this Agreement.
 

f. Taxes. SecondPage reserves the right to collect and charge, and you expressly acknowledge and agree that you will be responsible for paying, any sales, use, value added, or similar taxes, duties, charges or assessments that may become due in accordance with applicable law in connection with your use of the Services and Ad Platform or payments hereunder. Your Budget is exclusive of any such taxes.
 

6. Data and Privacy.
 

a. Use of Data. Except as otherwise expressly permitted by SecondPage in writing, and subject always to the restrictions set forth in this Agreement, to the extent SecondPage receives Advertising Data from Roku, SecondPage will make such Advertising Data available to you and subject to Roku’s Policies, you or your Measurement Providers may collect or process it. Advertiser may only use such Advertising Data for internal purposes and then only for (i) planning and optimizing Ad campaigns on the Roku Properties, and (ii) assessing the effectiveness and performance of Ad campaigns on the Roku Properties. Any other use of Advertising Data is expressly prohibited and will constitute a material breach of this Agreement. “Advertising Data” means any data that is collected, accessed, viewed, received, or derived by Advertiser or its Measurement Partners or otherwise provided or made available to Advertiser in connection with any ad campaign on the Roku Properties executed through the Agreement, including any campaign reporting, performance metrics, and any data or information available within the Ad Platform. Unless otherwise agreed by Roku or SecondPage in writing, Advertiser acknowledges and agrees that Advertiser is only permitted to access and view Advertising Data in an aggregated and anonymous manner and shall promptly notify Roku and SecondPage if Advertiser accesses, views, receives, or is otherwise provided any Advertising Data in an individualized, de-aggregated and de-anonymized, manner. The parties acknowledge and agree that the provision of Advertising Data, if any, hereunder is not part of and is explicitly excluded from the exchange of consideration, or any other thing of value, between the parties in connection with this Agreement.
 

b. Data Restrictions. Except as otherwise expressly permitted in this Agreement, you represent and warrant that you will not and will not attempt to:


i. Disclose, sell, rent, transfer, distribute, or provide access to Advertising Data (even in anonymous, aggregate form) to any affiliate or third party under any circumstance, including without limitation any ad network, ad exchange, SSP, DSP, DMP, data broker, data marketplace, or other advertising or monetization service or allow piggybacking or redirecting with tags.
 

ii. Commingle, combine, or aggregate Advertising Data with other data or analyze it across multiple advertisers or advertising campaigns.
 

iii. Link Advertising Data to any identifiable person, user, or household.
 

iv. Associate Advertising Data with any individual under the age of 13.
 

v. Use Advertising Data for repurposing, retargeting, prospecting, cross-device tracking, or to build or augment a device graph or similar identity solution.

vi. Create, append, edit, or augment any audience segments, user profiles, or interest categories related to any user, device, or browser.
 

vii. Determine or infer information about specific channels or titles of video content on the ad inventory in which an Ad was run or to determine any kind of employment, credit, health care, housing, or insurance eligibility.
 

viii. Modify or create derivative works of Advertising Data or disaggregate, de-anonymize or reverse engineer Advertising Data.

c. CRM Data. In the event this Agreement and Roku’s Policies enables you to upload, submit, or otherwise provide any first party customer data (“CRM Data”) belonging to Advertiser to use for targeting or otherwise, to the extent applicable, Advertiser represents and warrants that (i) such CRM Data was collected in accordance with applicable laws; (ii) it has all necessary rights and consents in and to such CRM Data in order to provide it and allow SecondPage and Roku to use it in connection your campaigns run through this Agreement; and (iii) CRM Data, if any, will not contain any information which is “sensitive” by its nature, including without limitation information about race or ethnicity, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, physical or mental health, sex life or sexual orientation, date of birth, financial, billing, and account information, contact and registration details, or any other data deemed “sensitive” by applicable laws or regulations.

d. Measurement Providers. For the avoidance of doubt, you may not disclose Advertising Data, if any, to any third party without SecondPage’s or Roku’s prior written consent in each case, except to your advertising measurement and analytics service providers that have been pre-approved by Roku (“Measurement Providers”), and then only to the extent necessary for those Measurement Providers to perform services on Advertiser’s behalf in connection with Ads on the Roku Properties in accordance with this Section 6 and not for any other purposes. Advertiser shall ensure Measurement Providers are bound by and comply with obligations that are no less restrictive than those set forth in this Section 6 and shall be liable for all acts and omissions of its Measurement Providers. 

e. Tracking Technologies. Unless otherwise explicitly approved or authorized by SecondPage or Roku in advance, Advertiser will not, and will not allow third parties, to place, install, or execute any tags, pixels, beacons, cookies, or any other tracking or data collecting technologies on the Roku Properties or any device of any end-user of the Roku Properties.

f. Compliance. You certify that you understand and represent and warrant that you shall comply with (i) all restrictions placed on your use of Advertising Data under this Agreement and (ii) all applicable privacy and data protection laws and regulations (“Data Protection Laws”), including without limitation the California Consumer Privacy Act of 2018 (“CCPA”), COPPA, and General Data Protection Regulation (“GDPR”). You shall cooperate with SecondPage as may be reasonably necessary for SecondPage (and Roku) to comply with applicable Data Protection Laws, including responding (I) to deletion or other data subject requests (“Data Requests”) pursuant to CCPA or other Data Protection Laws or (ii) notice, inquiry, or complaint by any regulator or other governmental authority (“Regulatory Inquiry”). You shall immediately notify SecondPage in writing if you receive a Data Request or Regulatory Inquiry involving Advertising Data and shall not respond without SecondPage’s prior written consent. Except to the extent otherwise permitted by applicable law, you shall delete any Advertising Data in your possession or control that relates to a Data Request within fifteen (15) business days after receipt of SecondPage’s written instructions (email included) thereto pursuant to Data Protection Laws.

g. Security. You shall maintain reasonable security measures and incident management policies in order to protect Advertising Data from any unauthorized access, alteration, destruction, loss, or disclosure (“Security Incident”). You will immediately notify SecondPage of any Security Incident involving Advertising Data and shall document and provide sufficient detail of such Security Incident in order for SecondPage (and Roku) to satisfy its obligations under Data Protection Laws. You will not publicly disclose any information regarding the Security Incident without SecondPage’s prior written consent. To the extent any Advertising Data is provided to you in de-identified or aggregated form, you shall not attempt to identify any individual to whom such Advertising Data relates and shall implement technical safeguards and business processes to prevent such reidentification of Advertising Data. You will protect and keep Advertising Data secure at all times while in your possession or control and shall treat all Advertising Data as Roku’s Confidential Information.

h. Data Deletion. You will delete all Advertising Data in your possession or control upon the earlier of (i) sixty (60) days after the end of the campaign to which the Advertising Data relates, or (ii) thirty (30) days after termination of this Agreement or your Account.

i. Child-Directed Content. You agree if any Ads are directed to children or knowingly served against content directed to children or end-users known to be children (“Child Directed Content”), as defined by the Children’s Online Privacy Protection Act (“COPPA”) or other applicable laws or regulations, then you (i) will comply with COPPA and any other applicable laws in connection with such Ad or campaign; (ii) will not, and will not allow others, to use data or information collected or processed in connection with such campaign for any purpose beyond fulfilling the applicable campaign on the Roku Properties, including without limitation retargeting, prospecting, cross device tracking, or building or augmenting segments or profiles about any individual; and (iii) will ensure information is only collected from Child Directed Content by SecondPage and its pre-approved Measurement Providers.

j. Privacy Policy. By creating an Account and using the Services, Advertiser and any individual acting on Advertiser’s behalf consent to the collection and use of information from or about Advertiser or such individual as described in SecondPage’s Privacy Policy, as well as for SecondPage’s internal purposes in order to improve its Services. Advertiser agrees it will publish a privacy policy on its website and/or application that complies with applicable law and adhere to such privacy policy in connection with this Agreement.

7. Restrictions.

You shall not use the Services to:

a. Authorize or encourage any third party to generate fraudulent impressions, Installs, Conversions, clicks, plays, page visits, views or other interactions on the Roku Properties or use any unauthorized means to extract or disclose any data from the Ad Platform;

b. Promote or engage in any illegal, deceptive or fraudulent business practice, or take any other action that could result in claims, fines, penalties or other liability to SecondPage or Roku, their respective business partners, or any of their respective affiliated companies;

c. Introduce any viruses, worms, trojan horses or other code that could harm or interfere with the Roku Properties or SecondPage’s or Roku’s systems;

d. Reverse engineer, decompile, disassemble, modify, or create derivative works of the Ad Platform, Services or any portion thereof;

e. Sell, rent, sublicense, lease, transfer, distribute, or otherwise make available the Ad Platform or Services to any third party;

f. Use any means, whether through robots, scripts, spiders, or otherwise, to access, monitor, scrape or copy content from the Roku Properties or Services; or

g. Do anything that could disable, overburden or impair the Roku Properties, Roku's systems or servers, or the proper operation of the Ad Platform or Services.

8. Confidentiality.

 

As used in this Agreement, “Confidential Information” means any non-public information, non-public beta features, statements, data, usage reports or other materials provided by SecondPage in connection with this Agreement, including any non-public information regarding Roku and the Ad Platform. Except with the prior written consent of SecondPage, you may not use Confidential Information except for purposes of performing your obligations under this Agreement or disclose any Confidential Information other than to your employees, agents, and independent contractors or advisors who are bound by an agreement to limit use and disclosure of Confidential Information consistent with this Section 8, in each case, with a legitimate need to know in order to fulfill your obligations. Notwithstanding the foregoing, nothing in this Agreement prohibits or limits your use or disclosure of information (a) previously known to you by lawful means without an obligation of confidentiality, (b) independently developed by or for you without use of or access to SecondPage’s Confidential Information, (c) acquired by you from a third party which, to the best of your knowledge, is not under an obligation of confidentiality with respect to such information, (d) which is or becomes publicly available through no breach of this Agreement, (e) in connection with any audit, where such auditor has agreed to be bound by this paragraph, or (f) in connection with any legal, governmental or administrative proceeding, provided that prior written notice of such disclosure is furnished to SecondPage in order to afford SecondPage a reasonable opportunity to seek a protective order, which such information is required to be disclosed by operation of law, court order or other governmental demand, solely to the extent required to comply with such law, order or demand.

9. Proprietary Rights.

 

The Services are the property of SecondPage and its licensors. Subject to your compliance with this Agreement, SecondPage grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the Services solely as expressly permitted by this Agreement. All SecondPage trademarks, service marks, trade names, logos, domain names, and any other features of the SecondPage brand ("SecondPage Brand Features") are the sole property of SecondPage.  All Roku trademarks, service marks, trade names, logos, domain names, and any other features of the Roku brand ("Roku Brand Features") are the sole property of Roku. This Agreement does not grant to you any rights to use any SecondPage Brand Features or Roku Brand Features, including in any Ad, whether for commercial or non-commercial use, and all goodwill generated from any SecondPage Brand Features or Roku Brand Features will inure solely to SecondPage and Roku, respectively. Except for the limited rights expressly granted to you hereunder, SecondPage grants no right, title, or interest to you in the Services and no rights are granted to you to the Ad Platform, by implication or otherwise. All rights not expressly granted to you herein are reserved by SecondPage.

10. Representations and Warranties.

Advertiser, and any individual acting on behalf of Advertiser, represents and warrants that (i) it has the full authority and necessary rights to enter into and perform in connection with this Agreement, including without limitation granting the license set forth in Section 2, (ii) it will comply with all applicable laws in connection with it use of the Services, (iii) all Ads will comply with the Policies described in this Agreement, (iv) the use and display of the Ad(s) by SecondPage and Roku will not violate any applicable laws or the intellectual property or other proprietary rights of any third party, and (v) Ads will not contain or promote any material that is illegal, deceptive, hate speech, pornographic, obscene, threatening, abusive, harassing, discriminatory, defamatory, libelous, or in breach of confidentiality.

11. Indemnification and Defense.

 

You will defend, indemnify, and hold SecondPage and Roku and each of their respective affiliates and business partners harmless from any third-party claims, demands, suits, or other assertions of rights ("Claims"), and all resulting judgments, settlements, losses and expenses (including attorneys' fees and costs) arising out of (i) your alleged breach of these Agreement, including any representations and warranties you make herein (including in Sections 6 and 10), (ii) your alleged violation of any applicable law or regulation, (iii) your alleged violation of any Policies or improper use of the Ad Platform, (iv) the Ads you submit to SecondPage for the Ad Platform or any content to linked to from such Ads, including any infringement, misappropriation, or violation of any third party intellectual property rights or rights of publicity or privacy, and (v) your alleged negligence or willful misconduct. You will use counsel reasonably satisfactory to SecondPage to defend each Claim and cooperate with SecondPage (at your sole expense) in such defense. Without limiting your indemnification obligations, SecondPage may participate in the defense of any Claim at its own expense. You will not consent to the entry of any judgment or enter into any settlement with respect to any Claims arising under or in connection with this Agreement without SecondPage’s prior written consent.

12. Limitation on Liability.

 

IN NO EVENT WILL SECOND PAGE OR ROKU OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, THIRD PARTY SERVICE PROVIDERS (INCLUDING THOSE WHO HELP PROVIDE AND OPERATE THE SERVICES OR AD PLATFORM), AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT LICENSORS) (COLLECTIVELY, THE “SECONDPAGE PARTIES”) BE LIABLE UNDER ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR SECONDPAGE’S PERFORMANCE HEREUNDER, EVEN IF THE SECONDPAGE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF THE SECONDPAGE PARTIES FOR ANY AND ALL CLAIMS, LOSSES, DAMAGES, COSTS, AND EXPENSES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE CLAIM.

13. Disclaimers.

 

ALL ASPECTS OF THE SERVICES AND AD PLATFORM AND ITS PERFORMANCE ARE MADE AVAILABLE "AS IS," AS AVAILABLE, AND WITH ALL FAULTS AND ERRORS. SECONDPAGE DOES NOT GUARANTEE THE SERVICE OR AD PLATFORM WILL BE AVAILABLE CONTINUOUSLY; DOWNTIME AND INTERRUPTIONS MAY OCCUR. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SECONDPAGE NOR ROKU, NOR THEIR RESPECTIVE AFFILIATES, NOR THEIR RESPECTIVE BUSINESS PARTNERS MAKE ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT. NEITHER SECONDPAGE NOR ROKU, NOR THEIR RESPECTIVE AFFILIATES, NOR THEIR RESPECTIE BUSINESS PARTNERS, MAKE ANY GUARANTEE IN CONNECTION WITH THE SERVICES OR AD PLATFORM OR RESULTS OBTAINED THEREFROM, INCLUDING WITHOUT LIMITATION THE DISPLAY OF ADS OR AVAILABILITY, QUANTITY, OR DELIVERY OF IMPRESSIONS, INSTALLS, OR CONVERSIONS. NEITHER SECONDPAGE NOR ROKU MAKES NO GUARANTEES REGARDING THE REACH OR PERFORMANCE OF YOUR ADS OR ANY OTHER ANTICIPATED BENEFITS RELATED TO YOUR USE OF THE SERVICES OR AD PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SECONDPAGE NOR ROKU, NOR THEIR RESPECTIVE AFFILIATES, NOR THEIR RESPECTIVE BUSINESS PARTNERS, WILL BE LIABLE, AND YOU AGREE NOT TO HOLD SUCH PARTIES RESPONSIBLE FOR ANY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, MONEY, OPPORTUNITY, GOODWILL OR REPUTATION, BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSS RESULTING DIRECTLY OR INDIRECTLY FROM THE REJECTION, SUSPENSION OR TERMINATION OF ANY AD.

14. Beta Features.

 

From time to time, SecondPage or Roku may offer certain experimental features on a trial basis (“Beta Features”). All Beta Features are provided AS IS, without any representations, warranties or covenants of any kind. All uses of Beta Features are solely at Advertiser’s own risk. Each of SecondPage and Roku may, in its sole discretion, modify, remove, or terminate your use of any Beta Features at any time.

15. Modification and Termination.

a. SecondPage may change, update, or replace this Agreement from time to time in its sole discretion. If we do, we will let you know by contacting you through your Account. It is your responsibility to review this Agreement whenever you access or use the Services and we encourage you to do so.

b. If we make a material change (in SecondPage’s determination) to this Agreement, we will provide you with reasonable prior written notice of the change before it goes into effect via a means that we deem appropriate under the circumstances, which may include without limitation sending a message to your most current email address on file or to your Account. Your use of the Services after changes to the Agreement go into effect will constitute your acceptance of any such changes and your consent to being bound by the revised Agreement. Notwithstanding the foregoing, any changes specific to new functionality or changes required by applicable law in SecondPage’s determination will be effective immediately upon posting.

c. SecondPage reserves the right, at any time in its sole discretion, to modify, limit, restrict, suspend, or discontinue, temporarily or permanently, in whole or part, any or all features, functionality, or capabilities of the Services and you acknowledge that Roku reserves the right, at any time in its sole discretion, to modify, limit, restrict, suspend, or discontinue, temporarily or permanently, in whole or part, any or all features, functionality, or capabilities of the Ad Platform, in each case, without notice or liability to you or any third party except to the extent prohibited by applicable law. All rights and obligations that expressly survive under this Agreement, will survive termination of the Agreement.

16. Dispute Resolution.

 

In the event you and Agreement have a dispute, the parties will attempt in good faith for at least thirty (30) days to resolve any controversy or claim arising out of or relating to this Agreement or use of the Services prior to commencing any litigation in accordance with Section 17(a). For the avoidance doubt, this Section 16 only applies to use of the Services and will not apply to any other agreement you may have with SecondPage.

17. Miscellaneous Terms. 

a. Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of California without regard to conflicts of law principles. The parties agree to submit to personal jurisdiction and exclusive venue in the federal and state courts located in Los Angeles County, State of California, in connection with any litigation or dispute arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, will not govern this Agreement.

b. Entire Agreement. This Agreement constitutes the entire agreement between you and SecondPage and its affiliates with respect to your use of the Services and Ad Platform and supersede any prior or contemporaneous agreements thereto. Unless otherwise explicitly agreed to in writing, no other terms will apply to your use of the Services.
 

c. Conflicts. In the event there is a conflict with any terms or other document incorporated by reference into this Agreement, these Agreement will supersede, except in the case of the Policies, where such Policies will supersede.
 

d. Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties, or otherwise.
 

e. Notices. Notices to SecondPage under this Agreement must be in writing and sent to Bold Screen Media, LLC, 2060-D E. Avenida de Los Arboles #289, Thousand Oaks, CA 91362. Such notices will be deemed given: (i) when delivered personally; (ii) three (3) business days after having been sent by commercial overnight carrier with written proof of delivery; and (iii) five (5) business days after having been sent by first class, certified or US Priority mail, with proof of mailing, postage prepaid. SecondPage may provide notices to Advertiser at the latest mailing address it has on file, by sending an email to the email associated with your Account. Notices provided via email or posted within your Account will be deemed effective upon sending or upon posting (unless otherwise stated), respectively.
 

f. No Waiver. Neither party will be deemed to have waived any rights by failing to enforce any provision or exercise any rights under this Agreement. No waiver of any breach of this Agreement shall be construed as a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach.

g. Severability. If any term or provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect, without regard to the invalidity of the provision, and this Agreement Terms shall be construed as if the provision had never been included in this Agreement.

h. Assignment. Advertiser may not assign or transfer any rights, or delegate any duties, under this Agreement without SecondPage’s prior written consent in each case, and any attempted assignment, transfer or delegation without such consent shall be void. SecondPage may freely assign or delegate any part of this Agreement to any affiliate or third party without notice or consent. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

i. Third Party Beneficiaries. Except as expressly provided herein, including without limitation, with respect to Roku and its affiliates and business parties, there are no third-party beneficiaries under this Agreement.

j. Relationship of the Parties. The parties are independent contractors. This Agreement does not establish any agency, partnership, employment, joint venture, or fiduciary relationship between you and SecondPage or its affiliates.

k. Force Majeure. Except with respect to payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition beyond its reasonable control, provided each party uses commercially reasonable efforts to mitigate such condition and resume performance as soon as possible.
 

l. Communications. You agree to receive communications from SecondPage in any form, including via e-mail or through postings within the Account or Services, including communications regarding your Account or Ad(s).
 

m. Publicity. You may not issue a press release or make any other public statement or announcement regarding this Agreement or the use of the Ad Platform without SecondPage’s prior written consent in each instance.
 

n. Feedback. If you submit feedback or suggestions to SecondPage regarding the Services, you grant SecondPage a perpetual, transferable, worldwide right and license to use, incorporate, and exploit your feedback or suggestions on a non-confidential, unrestricted basis, without any compensation or other obligation owed to you of any kind.
 

o. Survival. The following sections will survive, and any other term or provision which by its nature or the circumstances is reasonably intended to survive, expiration or any termination of this Agreement: Sections 2, 5-13, and 15-17