LAST UPDATE AS OF JANUARY 7, 2020

 

I. Publisher Obligations and Requirements

 

1.  In order to become and remain a publisher (“Publisher” or “you”) within the publisher network of Trendesk.tv, LLC (“Trendesk.tv” or “we”), your websites and applications where you have posted your unique Trendesk.tv source code, including all web pages within those domains regardless of whether that particular page hosts Trendesk.tv source code or not, (collectively, “Publisher Properties”) must contain specialty content that is: (a) current; (b) regularly updated; and (c) resides on a top-level domain, and does not include portals, search engines, and sites of links to any third party’s content.  You agree not to alter, translate or create derivative works of Trendesk.tv’s source code in any way without the prior written permission of Trendesk.tv. 

 

In addition, Publisher Properties must not: (i) violates any applicable law, rule, or regulation; (ii) promotes violence, the use of firearms, gambling, online casinos, tobacco, alcohol, or unlawful subject matter or activities (e.g. discrimination of protected classes, hate crimes, P2P sites, or copyright protection circumvention sites, etc.); (iii) violates any intellectual property right or other proprietary or privacy right of any third party; (iv) is defamatory, libelous, abusive, harassing, offensive, deceptive, obscene, pornographic or sexually explicit; (v) contains, links to, uses or otherwise causes the downloading of any malicious code; (vi) artificially increases impression, click or engagement behavior for the purpose of increasing advertising revenue; (vii) allow advertising on any sites or pages for which you are not directly responsible or any sites that have not been reviewed and approved by Trendesk.tv ; (viii)allow timed rotation or auto refresh of advertising; or (ix) contain unmoderated user-submitted content. 

 

You are solely responsible for providing, at your own expense, content, development, marketing and technical support for the Publisher Properties or Publisher content, except with respect to advertising. You are solely responsible for all editorial aspects of the Publisher Properties, and Trendesk.tv has no right to control any aspects of the Publisher Properties.

 

You shall maintain the Publisher Properties to meet, at a minimum, commercially prevalent industry standards.  You acknowledge that Trendesk.tv has no responsibility to review the content of the Publisher Properties.  You shall ensure that the Publisher Properties shall be of a quality and design that allows Trendesk.tv the opportunity to maximize its representation of the Publisher Properties. 

 

With respect to any advertising served via header bidding, you agree to (1) integrate the Trendesk.tv header bidding tag into Publisher Properties so that Trendesk.tv may participate in your auctions, and (2) be responsible for conducting an auction in respect of Publisher Properties. 

 

You will provide Trendesk.tv with prior written notice regarding any new website domain sources for which you will be providing traffic.  Your internal quality control team shall screen such new website domain sources to determine whether the same are clean and shall provide their written determination to Trendesk.tv if any content on the Publisher Properties is found not to be clean. 

 

You represent and warrant that all video content provided by Publisher to Trendesk.tv , if any, for online video management is owned by you or you have all necessary legal rights to use and distribute the video content.  You shall not attempt to reverse engineer, decompile or dissemble the Trendesk.tv video management technology. 

 

2.  Trendesk.tv does not guarantee any specific percentage of paid advertising to a website or any inventory sell rate. You acknowledge and agree that not all advertisement opportunities will be filled with a paid advertisement impression from us, and therefore, there is no guarantee that there will be revenue generated for every advertisement opportunity provided by you. 

 

Default Impressions” (impressions served when no paid advertising is available) are a by-product of our business. Publishers may choose to redirect all or a portion of their Default Impressions at no additional charge. If a Publisher does not specify a default redirect, Trendesk.tv reserves the right to utilize these Default Impressions for its sole benefit without compensation to the Publisher. Such uses may include, but are not limited to, running opt-in visitor surveys, collecting user data, promoting Trendesk.tv products and services, running test campaigns, running public service announcements, and/or running “make good” campaigns (make good campaigns are unpaid advertisements that are run to make-up for the occasional discrepancies that occur during the normal course of business).

 

3.  If you are utilizing Google’s Exchange Bidding Platform (“Google EB Platform”), Trendesk.tv hereby agrees to make advertising materials available to you via Google’s EB Platform and you hereby agree to make supply inventory available to Trendesk.tv via Google’s EB Platform.   Subject to any earlier termination in accordance with this Agreement, this Agreement shall remain in full force and effect while both Trendesk.tv and Publisher each continue to be a party to an agreement with Google in respect of its use the Google EB Platform. 

 

II. Rates and Revenue Share

 

1.  For all advertising sold by Trendesk.tv on the Publisher Properties (except if you are utilizing the Google EB Platform), Trendesk.tv shall pay Publisher either: (a) the Revenue Share Rate of the Net Advertising Revenues we receive from its advertising clients for Paid Ad Impressions (as calculated by Trendesk.tv ); or (b) the Bid Price if such Bid Price is selected as the winning bid by Publisher’s auction interface, as applicable.  “Net Advertising Revenue” refers to amount equal to all revenue generated in connection with the sale of advertising on the Publisher Properties less any ad agency, data, creative service, rich media or other fees. “Paid Ad Impression” means an ad impression (as counted by Trendesk.tv ) that is not a (i) house, (ii) passback, or (iii) default ad, and for which Trendesk.tv would be entitled to receive compensation. “Bid Price” refers to the amount Trendesk.tv is willing to pay for the display of certain advertising on Publisher Properties.  Trendesk.tv ‘s adjustments to the amount payable to you could include, but shall not be limited to, costs associated with credit card fraud, advertising clawbacks, suspicious impressions, origin and quality of the traffic (including, but not limited to, mismatch in IP address), and accuracy and completeness of information required for campaign tracking.  If any traffic relating to Publisher Properties is found to be purchased, invalid, misrepresentative, suspicious, or otherwise invalid in nature, Trendesk.tv reserves the right to withhold any or all revenues (including any Bid Price) due to you notwithstanding any contract term, course of dealing or understanding to the contrary.  If adjustments occur, then you will not be guaranteed the revenue share. 

 

2.  Trendesk.tv will determine all advertising rates, including any Bid Prices, and may change the rates and/or Bid Prices without notice. You are free to set advertising rates for any advertising inventory sold by you. 

 

3.  Revenue Share Rate (if applicable): 70%.  Revenue Share Rate shall not apply to any advertising sold via header bidding.  In the case of header bidding, Trendesk.tv does not guarantee any minimum revenue share to Publisher.

 

4.  If you are utilizing the Google EB Platform, your earnings calculation shall be in accordance with your separate agreement with Google. 

 

5.  For all advertising sold through a private marketplace (“PMP”) initiated either by you or Trendesk.tv , the applicable technology fee (as mutually agreed to by you and Trendesk.tv ) and any mutually agreed data fee(s) for data utilized in such PMP shall be deducted from the monthly Gross Advertising Revenue generated in connection with such sale.  “Gross Advertising Revenue” refers to amount equal to all revenue generated in connection with the sale of advertising on the Publisher Properties.

 

You acknowledge and agree that rate information is proprietary and confidential information to Trendesk.tv and may not be disclosed to any other advertisers or third parties.

 

III. Billing and Payment

 

1.  Trendesk.tv will handle all accounting arrangements and provide you with an online summary of the activity on your unique Trendesk.tv source code.   

 

2.  Trendesk.tv pays publishers on the last day of each month elected via electronic payment for all campaigns that ended at least 90 days earlier based on revenue reported by Trendesk.tv .  You shall only hold Trendesk.tv liable for payments to the extent that Trendesk.tv has received the corresponding payments from Trendesk.tv ’s clients and/or such payment is undisputed.  If a Trendesk.tv client requires a refund or imposes a deduction due to your breach of this Agreement (as determined in Trendesk.tv ’s sole discretion) after Trendesk.tv has already made payment or after the Agreement has expired or terminated, you shall promptly reimburse Trendesk.tv for any such refund or deduction. 

 

3.  You will be paid for all campaigns unless you have earned less than the minimum payment threshold of $500. Your balance will carry forward until you have a balance greater than such minimum payment threshold. Trendesk.tv reserves the right to terminate this Agreement if your account goes unpaid due to a failure to exceed the minimum payment threshold during any 6 months period. Payment shall be made in U.S. Dollars by check or ACH transfer to a bank account designated by you, subject to the following additional conditions for international payments: (a) for international wires, a minimum account balance of $1,000 U.S. Dollars is required; and (b) for international payments under $1,000.00 U.S. Dollars, PayPal may be used so long as you have a minimum account balance of $200.00. In addition, all PayPal payments are subject to a $5.00 surcharge.

 

4.  Payments under $5.00 for an inactive account will not be made and are permanently forfeited.

 

5.  TRENDESK.TV WILL NOT MAKE ANY PAYMENTS TO YOU UNTIL WE HAVE RECEIVED YOUR WRITTEN AGREEMENT TO THESE TERMS OF SERVICE

 

6.  Paid Ad Impressions will be calculated based on traffic audits from Trendesk.tv ‘s central server. Trendesk.tv traffic audits will be the sole source of audience traffic measurement for billing purposes. Some ads may be shown by a third-party server. In that case Trendesk.tv may need to rely on the third-party server’s traffic audits as the sole source of audience traffic measurement for billing purposes.

 

7.  You agree not to use, or allow the use of, any deceptive, incentivized, mechanical, computerized or other artificial means of increasing the number of users, impressions, page views, click-throughs or any other measure of your traffic.

 

8.  If, in its reasonable judgment, Trendesk.tv concludes that there has been deceptive, incentivized, mechanical, computerized or other artificial means used to increase impressions, page views, click-throughs, or any other measure of Internet traffic at your web site, Trendesk.tv may terminate this Agreement and seize all of your earnings hereunder, whether they have been paid out to you or not.

 

9.  If you are utilizing Google’s EB Platform, you hereby acknowledge and certify that you have entered into and is a party to a separate agreement with Google governing your access to and usage of Google’s EB Platform.  You shall abide by the terms and conditions set out in your separate agreement with Google. You acknowledge and agree that all payment and fees due to you under this Agreement will be made through Google’s EB Platform.

 

IV. Trendesk.tv Publisher Portal

 

1.  Upon your agreement to these Terms of Service, you will be given a password which allows you to access the information on the Trendesk.tv Publisher Portal (“RPP”). You are responsible for the security of your RPP password and are responsible for any actions taken by anyone using your password.

 

2.  Trendesk.tv will provide you with source code that will display advertising from Trendesk.tv ‘s server on your web page(s). You shall load the code as prescribed on the RPP and shall not alter it without Trendesk.tv ‘s consent. By running our source code, you agree to abide by the terms and conditions set forth in this Agreement and on the RPP.

 

V. License Grant and Data Ownership

 

1. You hereby grant Trendesk.tv the right to sell and have sold advertising on the Publisher Properties, to insert such advertising during the Term (hereinafter defined), including the right access or call to the Publisher Properties or the servers that make them available and to cause the routing, transmission, reproduction, and display of advertising as contemplated herein, and to collect data and information with regard to visitors and Publisher Properties.  Furthermore, you hereby grant Trendesk.tv the right to list such advertising in pitch materials to prospective advertisers, to report such advertising as being part of Trendesk.tv ’s advertising network, and to use your trademarks and logos and images of the Publisher Properties in connection with exercising the foregoing right. 

 

2.  Trendesk.tv owns all right, title, and interest in and to its technology, software and products, including all associated intellectual property rights. All data collected by Trendesk.tv or advertisers through the Trendesk.tv technology or otherwise from Publisher Properties, including, but not limited to, cookies and beacon data, metadata, usage data, geo-location data, analytics, visitor data, and streaming data will be the property of Trendesk.tv or the advertiser, as the case may be. You hereby acknowledge that all information, graphics, and infrastructure provided by Trendesk.tv are the sole property of Trendesk.tv and may not be used without its prior written consent.  Furthermore, Rhythm retains all right, title, and interest in and to any materials created, developed, or provided by Rhythm in connection with this Agreement, including all intellectual property rights related to each of the foregoing. 

 

VI. Data Protection

 

1. Definitions:

(a) “Data Protection Law” means any and all applicable privacy and data protection laws (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.

(b) “EU Data Protection Law” means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); (iii) EU Network and Information Systems Directive (Directive (EU) 2016/1148); and (iv) any national data protection laws made under or pursuant to (i), (ii) or (iii).

(c) In this Section, the expressions “controller“, “processor“, “personal data“, “processing” (and “process“) shall have the meanings given in Data Protection Law.

 

2. Data Protection.

(a) The parties acknowledge that Publisher will disclose or make available certain data about visitors to the Publisher Properties (which may include personal data) (“Data“) to Trendesk.tv to process for the purpose of selling advertising and to improve ad targeting across its network of participating publishers (the “Permitted Purpose“). 

(b) Publisher is a controller of the Data it discloses or makes available to Trendesk.tv , and Trendesk.tv will process the Data as a separate and independent controller for the Permitted Purpose.  In no event will the parties process the Data jointly as joint controllers. 

(c) Each Party shall be individually and separately responsible for complying with the obligations that apply to it as a controller under Data Protection Law.  Without limitation to the foregoing, each Party shall maintain a publicly-accessible privacy policy on its website that satisfies the transparency disclosure requirements of Data Protection Law. 

(d) Trendesk.tv will not disclose the Data to any third party without Publisher’s prior written consent except: (i) for the Permitted Purpose; (ii) as otherwise permitted pursuant to this Agreement; or (iii) where required by applicable law.

(e) Trendesk.tv shall implement appropriate technical and organizational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident“).  In the event that Trendesk.tv suffers a confirmed Security Incident that impacts the Data, it shall notify Publisher without undue delay and cooperate in good faith with the Publisher to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident. 

(f) Trendesk.tv may appoint third party processors to process Data for the Permitted Purpose, provided that such processors: (i) agree in writing to process Data in accordance with Trendesk.tv ‘s documented instructions; (ii) implement appropriate technical and organizational security measures to protect the Data against a Security Incident; and (iii) otherwise provide sufficient guarantees that they will process the Data in a manner that will meet the requirements of Data Protection Law.Trendesk.tv accepts responsibility for any breach of this Section 6 that is caused by an act, error or omission of a processor it has appointed.

(g) Where EU Data Protection Law applies, Trendesk.tv shall not process any Data (nor permit any Data to be processed) in a territory outside of the European Economic Area (“EEA“) unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law. 

(h) Trendesk.tv uses cookies and similar tracking technologies (such as mobile device identifiers and digital fingerprinting) to provide its services (“Cookies“).Publisher shall ensure that appropriate notice and consent mechanisms as may be required by Data Protection Law are displayed upon Publisher Properties from which the Data are collected or made available so that Trendesk.tv can serve Cookies lawfully through such Publisher Properties to provide its services under this Agreement.  Upon request, Trendesk.tv shall provide Publisher with such information as Publisher may reasonably require about Trendesk.tv ‘s Cookies so that Publisher can ensure that such notice is provided. Trendesk.tv shall not use Cookies to collect data from any individual who has opted-out of Trendesk.tv Cookies. In particular, Publisher Properties will have an active, publicly stated privacy policy that contains the following language (or similar): 

 

We use third-party advertising companies to serve ads when you visit our Web site. These companies may use information (not including your name, address, email address or telephone number) about your visits to this and other Web sites to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here (http://www.networkadvertising.org/managing/opt_out.asp).”

 

(i) Subject to Publisher’s prior review and approval of the Trendesk.tv Platform requirements, Publisher will use best efforts to ensure the Publisher Properties support the targeting criteria set forth in the Trendesk.tv Platform in the advertising calls from the Publisher Properties to the Trendesk.tv Platform and to pass any additional criteria from its Publisher Properties to the Trendesk.tv Platform including, but not limited to, registration information, location information and content section information.

(j) Publisher hereby acknowledges that information, graphics, and infrastructure provided by Trendesk.tv are the sole property of Trendesk.tv and may not be used without its prior written consent.

(k) Publisher must inform Trendesk.tv (and keep Trendesk.tv informed) if any Publisher Properties are directed towards children under the age of 16. In such event, Publisher acknowledges that Trendesk.tv may elect not to sell Advertising on such child-directed Publisher Properties.

(l) This Section shall survive termination or expiry of this Agreement.  Upon termination or expiry of this Agreement each Party may continue to process the Data under its control provided that such processing complies with the requirements of this Section and Data Protection Law.

 

VII. Term and Termination

 

1.  This Agreement shall be effective as of the date you agreed to the Terms of Service and shall remain in place for an initial term of 2 years (the “Initial Term”). At the end of Initial Term, this Agreement shall automatically renew for consecutive 12-month periods unless terminated by either party with at least 90 days’ written notice prior to renewal (each, a “Renewal Term”). The Initial Term and any Renewal Term(s) are collectively referred to as the “Term”.

 

2.  You may terminate this Agreement by written notice to support@Trendesk.tv .com.  Trendesk.tv may terminate this Agreement by written notice to your email as shown on our records. 

 

3.  Trendesk.tv reserves the right at any time, in its sole and absolute discretion, to terminate this Agreement, or in lieu of terminating this Agreement, to suspend the marketing of and placement of advertising for you. 

 

4.  Upon termination of this Agreement, all undisputed amounts due to any party (prior to termination) shall be paid in accordance with this Agreement.

 

VIII. Representations and Warranties

 

You hereby represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement will constitute the legal, valid and binding obligation of such party when executed and delivered; (d) any and all activities it undertakes in connection with this Agreement will be performed in compliance with all applicable laws, rules and regulations, as well as industry self-regulatory principles, including the Digital Advertising Alliance’s (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising, and the Self-Regulatory Code of Conduct and Principles of the Network Advertising Initiative (“NAI”); (e) if any of the Publisher Properties are accessible in the EEA, Publisher will ensure that it, and all of its publisher partners, is registered with the IAB Europe Transparency & Consent Framework and comply with the IAB Europe EU Framework for Online Behavioural Advertising and the European Interactive Digital Advertising Alliance’s (“eDAA”) Self-Regulatory Principles; (f) the Publisher Properties and their contents and any other intellectual property rights used by you do not require the consent of any other entity for you to use them in connection with its obligations under this Agreement; (g) the Publisher Properties and their contents are owned exclusively by you, free and clear of any attachments, liens, encumbrances, or adverse claims; (h) your present or contemplated activities, products, or services do not infringe, misappropriate, dilute, impair, or constitute unfair competition with respect to any third party’s intellectual property rights; (i) all content, products, and services on Publisher Properties are legal to distribute and that you own or have the legal right to use them; (j) use of the Publisher Properties by Trendesk.tv or any of Trendesk.tv ’s advertisers will not infringe any third party’s rights, including any intellectual property rights; and (k) the Publisher Properties do not and will not contain any content which violates any applicable law or regulations. 

 

IX. Indemnification

 

1.  You hereby agree to indemnify, defend, and hold harmless Trendesk.tv and its officers, directors, members, managers, agents, parent, subsidiaries, affiliates, customers, and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings: (a) for libel, defamation, violation of infringement of any third party’s intellectual property rights in connection with the Publisher Properties (except for advertisements supplied by Trendesk.tv ); (b) relating to a contaminated file, virus, worm, or Trojan horse originating from the Publisher Properties (other than through advertisements supplied by Trendesk.tv ); (c) arising out of any claim regarding invalid traffic, click fraud or misrepresentative traffic originating from Publisher Properties; and/or (d) breach of this Agreement.

 

2.  Trendesk.tv will not be subject to any liability whatsoever for: (a) any failure to provide reference or access to all or any part of the Trendesk.tv ’s platform or websites due to systems failures or other technological failures of Trendesk.tv or of the Internet; (b) delays in delivery and/or non-delivery of advertisements, including, without limitation, difficulties with a customer or creative, difficulties with a third-party server, or electronic malfunction; and (c) errors in content or omissions in any advertising.

 

X. Disclaimers, Exclusions and Limitations

 

1.  Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRENDESK.TV DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE SERVICES PROVIDED BY TRENDESK.TV ARE PROVIDED ON AN “AS-IS, AS AVAILABLE” BASIS.  TRENDESK.TV AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TRENDESK.TV PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE TRENDESK.TV PLATFORM OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TRENDESK.TV MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. TRENDESK.TV RESERVES THE RIGHT AT ALL TIMES, AT ITS DISCRETION, AND WITHOUT NOTICE, TO REMOVE OR REFUSE TO DISTRIBUTE ANY TRENDESK.TV ADVERTISEMENTS. TRENDESK.TV DOES NOT WARRANT THE RESULTS OF USE OF THE TRENDESK.TV PLATFORM.  YOU ACKNOWLEDGE THAT TRENDESK.TV MAY MODIFY OR SUSPEND ITS SERVICES AND THE TRENDESK.TV PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.

 

2.  Limitation of Liability. UNDER NO CIRCUMSTANCES WILL TRENDESK.TV BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL TRENDESK.TV ‘S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY TRENDESK.TV TO YOU DURING THE 6 MONTH PERIOD PRIOR TO THE TIME SUCH LIABILITY AROSE UNDER THIS AGREEMENT. 

 

XI. Governing Law and Venue

 

This Agreement shall be governed by the laws of the State of Washington.  You hereby irrevocably submit to the nonexclusive jurisdiction of any Washington state or federal court sitting in Seattle, Washington in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby and waive, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding.

 

XII. Assignment; Successors and Assigns

 

This Agreement shall be binding on the undersigned, its successors and assigns. This Agreement may not be assigned or subcontracted by either party without the prior written consent of the other party (not to be unreasonably withheld or delayed), provided that Trendesk.tv may assign or subcontract this Agreement without Publisher’s consent to a parent, subsidiary, affiliate, or to any entity that acquires Trendesk.tv or all or substantially all of its stock or assets.

 

XIII. Setoff

 

In the event Trendesk.tv is due any sums under this Agreement or for any other services provided by Trendesk.tv , Trendesk.tv may set off such amounts from your earnings.

 

XIV. Confidential Information

 

1.  You acknowledge that you may be exposed to proprietary or Confidential Information of Trendesk.tv , including without limitation information concerning: products and services and the pricing for same and any royalty or fee arrangements; customers, prospective customers, suppliers or employees; business methods, procedures and techniques, technology; marketing information or plans; trade secrets; or commercially sensitive information.  “Confidential Information” means all written or oral information disclosed by Trendesk.tv to you that has been identified as confidential or that by its nature ought reasonably to be considered confidential.

 

2.  You agree: (a) not to disclose the Confidential Information to anyone except your employees, contractors, and advisors on a strict need to know basis and subject to confidentiality obligations at least as strict as herein; (b) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (c) to use all commercially reasonable endeavors to protect the confidentiality of the Confidential Information, which as a minimum will include applying the same care that it applies to protect its own similar information, but in no event less than reasonable care. 

 

3.  The obligations of confidentiality under this Agreement shall not apply to any information that: (a) has entered the public domain except where such entry is the result of your breach of this Agreement; (b) is obtained by you on a non-confidential basis from a third   party   who  has   the   right  to   disclose   such information; or (c) was developed by you without use of the Confidential Information.

 

4.  You may disclose Confidential Information to the extent required to comply with a court or governmental order, or with applicable law; provided that, to the extent permitted by applicable law, you give reasonable notice to Trendesk.tv to contest such order or requirement.

 

5.  You agree that any actual or threatened breach of this Section will constitute immediate, irreparable harm to Trendesk.tv for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. 

 

XV.  Independent Contractor Relationship

 

The parties are independent contractors, and no agency, partnership, or other form of joint venture or employment relationship is intended or created by this Agreement.

 

XVI.  Severability

 

In the event any provision or part provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.

 

XVII.  No Waiver

 

In no event shall failure or delay on the part of either party in enforcing any provision, right or remedy provided in this Agreement be or be deemed to be a waiver of any subsequent breach of the same or any other provision of this Agreement.

 

XVIII.  Survival

 

Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.

 

XIX. Entire Agreement and Amendments

 

This Agreement with all exhibits hereto constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any previous or contemporaneous oral or written arrangements, representations or understandings relating to the subject matter of this Agreement.  Except as set forth herein, this Agreement may not be amended, terminated, or waived orally.  From time to time, Trendesk.tv may change, remove, or add to this Agreement, and reserves the right to do so in its discretion. In that case, we will post updated Terms of Service and indicate the date of revision. All new and/or revised Terms of Service shall take effect immediately and apply from that date on. Your continued use of our services after new and/or revised Terms of Service are effective indicates that you have read, understood, and agreed to those revised Terms of Service.  Any amendment hereof by Publisher must be in writing and signed by Trendesk.tv .