Terms and Conditions

Last Modified: 04-18-24

This website and/or app (“Site”) and any web based software or other technological platform offered via the Site, including any self-serve offering (“Self-Serve Offering”) or managed service (“Managed Service Offering”), (collectively, “Software”) are owned and operated by FISCOWL, LLC (“FISCOWL”, “We”, “Us”, or “Our”) and is provided to you, the customer, and those individuals authorized by you, the customer (“You”, “Your”, or “Customer”), subject to this Agreement, which may be updated by us from time to time without notice. This Agreement shall govern Your access and use of the Site and any Software or associated services (“Services”) via online process and/or sign up, with physical signature and/or online agreement which constitutes an “Order” and/or “Insertion Order” for digital media placement. These Terms & Conditions, our Privacy Policy found here (“Privacy Policy”) and all Orders / Insertion Orders are collectively referred to as the “Agreement” and represents each parties entire understanding regarding the Site, Software and Services and no other terms or conditions shall apply.

FISCOWL PROVIDES THE SERVICES AND ACCESS TO THE SITE AND SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY ACCESSING THE SITE, USING THE SOFTWARE AND CONDUCTING TRANSACTIONS WITH THE COMPANY IN CONNECTION WITH THE SITE AND SOFTWARE YOU HEREBY: (1) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; (2) AGREE THAT YOU WILL ONLY ACCESS THE SITE AND SOFTWARE IF YOU ARE AT LEAST 18 YEARS OLD, (3) AGREE THAT YOU WILL COMPLY WITH AND BE BOUND BY THIS AGREEMENT AS IT APPEARS ON THE SITE AND SOFTWARE EACH TIME YOU ACCESS AND USE THE SITE OR SOFTWARE, (4) AGREE THAT EACH USE OF THE SITE AND SOFTWARE BY YOU INDICATES AND CONFIRMS YOUR ASSENT TO AND AGREEMENT TO BE BOUND BY THIS AGREEMENT; AND (5) REPRESENT, WARRANT AND COVENANT THAT: (A) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (B) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THAT YOU HAVE THE RIGHT, POWER, AND AUTHORIZATION TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, FISCOWL DOES NOT AND WILL NOT LICENSE THE SOFTWARE TO YOU OR PROVIDE YOU WITH ACCESS TO THE SITE AND YOU MUST NOT USE THE SITE OR SOFTWARE.

1. License Grant. During the Use of the Site, Term and/or Subscription Term, deemed as individual uses of the Site and/or renewable Terms year-to-year, which starts on the first day of Order and/or Insertion Order, and subject to the terms and conditions of this Agreement, FISCOWL hereby grants Customer a limited, non-exclusive, nontransferable, worldwide right to permit those individuals authorized by Customer and on Customer’s behalf, whether employees, agents or contractors (“User”) to access and use the Site and Software. These Services are provided from a data center facility to which users have remote access via the internet in conjunction with certain offline components provided by FISCOWL. Each Order and/or Insertion Order relates to specific Usage Rights and Customer warrants they will not exceed their Usage Rights. Customer is solely responsible for obtaining and maintaining appropriate equipment used to access the Subscribed Services, including, but not limited to, computers, laptops, tablets, mobile devices, cell phones, email accounts and any internet connected device that uses an internet browser or app store to connect to the Services (“Equipment”). It is the Customer’s sole responsibility to ensure its compliance with the Site, Software and Services and to maintain sole security of any account access password(s). Customer acknowledges and agrees that it has the sole responsibility and liability for its and its’ User’s: (a) use and access to the Services, Site and Software and it will be liable for all acts of unauthorized access; and (b) any data that you transmit using the Site, Software or Services.

2. Restrictions. Customer shall NOT and shall not permit Users to:

2.1 Directly, or indirectly, reverse engineer, disassemble or decompile the Software, Site, or Services or attempt to gain access to proprietary technology code, ideas or algorithms of the Software, Site or Services.

2.2 Modify, translate or create derivative works based on the Site, Software or Services, or use any automated technology, systems, programs, scripts, software, or other means for the purpose of scraping, indexing, surveying or otherwise mining, harvesting or extracting data from the Site.

2.3 Rent, lease, distribute or assign any copy of their subscribed Services to any third party or competing third party.

2.4 Use the Site, Software or Services for any purpose, other than the licensed use as described in this Agreement, including (i.e. Customer shall not use) as a service bureau, time-sharing, or other form of commercial resale of the Site, Software or Services for the benefit of third parties.

2.5 Damage, disable or interfere with FISCOWL’s provision of the Site, Software, or Services in any way, including pursuant to an “ethical hack”.

3. Use any Site, Software or Services, or allow the transfer, transmission, export, or re-export of any Site, Software or Services or portion thereof in violation of any export control laws or regulations, or in violation of any applicable laws, including broadcasting regulations, governing Customer.

3.1 Use the Software, Site, or Services in violation of any applicable laws and regulations including those related to: e.mail, GDPR, CCRA, CCPA, CAN-SPAM Act of 2003, Digital Millennium Copyright Act Policy, anti-spam, spamming, data protection, data privacy, data security, intellectual property, consumer protection, child protection, pornography, obscenity or demotion.

FISCOWL reserves the right to immediately suspend a Customer’s password, account or access to the Site, Software or Service if a Customer fails to make payments or violates any provision of this Agreement. Any suspension will relieve the Customer of the obligation to pay for Services under the Agreement that were provided after the date of such suspension. FISCOWL may monitor Customer use and data in aggregate and anonymous manner, compile statistical data and performance data to improve upon the Services. This data may be made public, but would not include Customer Confidential Data or Identity Data. FISCOWL would retain all intellectual property rights to such data. Customer agrees that FISCOWL may, from time to time, give notice of changes, improvements or special offers via e.mail to the e.mail address on record. Customer agrees and acknowledges that Services may be temporarily unavailable for maintenance or emergency issues. All reasonable efforts will be used to remedy any down time in Services.

4. Intellectual Property.

4.1 FISCOWL shall own and retain all rights, title, and interest in and to any rights associated with works of authorship, including, without limitation, all exclusive exploitation rights, copyrights, and mask work rights; patents (including, without limitation, reissues, divisions, reexaminations, extensions, continuations, and continuations-in-part thereof), designs, and other industrial property rights, any copyright in source code, object code, formulas, ideas, concepts, mask works, methods, know-how, processes, devices, and the like, trademark, trade dress, and other works based on designation of source or origin, whether arising by operation of law, contract, license, or otherwise, together with the goodwill connected with the use thereof and symbolized thereby, all registrations, applications, renewals, extensions, continuations, divisions, reissues, and the like which is based on any of the foregoing, trade secrets and know-how, computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, resultant data, protocols and specifications and all other intellectual property and proprietary rights of every kind and nature (“Intellectual Property”) owned by FISCOWL in existence as of the effective date of this Agreement and any Intellectual Property developed by FISCOWL outside of and pursuant to this Agreement. As between the parties, Customer owns all right, title and interest in and to any data that it uploads or otherwise makes available to FISCOWL, in the form provided, via the Site or Software, such as data relating to the Customer and/or its business, media schedules, or any other similar data (“Customer Data”). Customer Data and the legality, integrity, accuracy or quality is the sole and exclusive responsible of the Customer.

4.2 The parties acknowledge and agree that as between the parties, Intellectual Property developed during the Term, including Intellectual Property developed or prepared on behalf of Customer in connection with the Site, Software, or Services, including resultant data generated from the processing of Customer Data: (i) shall remain the exclusive property of FISCOWL; (ii) as between the parties, FISCOWL owns all right, title, and interest in and to the Foreground Intellectual Property; and (iii) shall not be deemed to be works made for hire. The parties acknowledge and agree that FISCOWL or its licensors own and shall retail all Intellectual Property rights in and to the Site, Software and Services and any enhancements, updates or other modifications thereto made by any entity, including any updates, patches, bug fixes or workarounds.

4.3 Contents. The content and information provided via the Site and or Services, including but not limited to, text, graphics, sketches, photo images, video, logos, and all other information published and contained on this Site (the “Contents”) are the exclusive property of FISCOWL and FISCOWL shall retain all right, title and interest in and to the Contents along with any goodwill generated thereby (except with respect to goodwill generated by Customer’s marks used in connection with white label versions of the FISCOWL software technology, which will inure to Customer as applicable). Except as specifically provided herein, the Contents may not be copied, distributed, displayed, reproduced or transmitted, in any form or by any means, without the express written consent of FISCOWL. You may request to use information provided on this website, or any of our accompanying websites related to FISCOWL brands (listed below) by e.mailing and your request will be reviewed on a case by case basis with consideration to use of our Contents. FISCOWL brands include:

ANALYTICOWL, FISCOWL, OWLCTV, OWLPS, WISE RATINGS, DIRECTIONOWL, NUMERICOWL, ACQUISITIONOWL, TACTICOWL, CONVERSATIONOWL, CREATIONOWL, INFORMOWL, DECISIONOWL, TRANSACTIONOWL, INTEGRATIONOWL, ACOUSTICOWL, CINEMATICOWL, TECHNICOWL, AUTOMATICOWL, PODCASTOWL

5. Limited Warranty. Each Party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation; (b) it has the full right, power, and authority to enter into this Agreement, and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms. FISCOWL represents and warrants that it shall perform the Services personnel of required skill, experience and qualifications and in a professional and workmanlike manner.

6. DISCLAIMER.

6.1 Lift is the comparison of the advertising analytics to the total web sessions in any given date range. FISCOWL, LLC (and AnalyticOwl.com) Advertising metrics are derived from matching time stamped website data against time stamped advertising data (including any ad spots and ad impressions) (“Advertising Data”) and: (a) are designed to be used for estimating purposes only; (b) should be used with the express understanding that any advertising decisions should be based on a multitude of factors that FISCOWL does not capture; and (c) accuracy is not guaranteed (“Advertising Metrics”). The Advertising Metrics reported to You, including Pacing, Impression and Attribution reports across any date range, are based solely on the Advertising Data and Customer Data that is available to FISCOWL via the various ingestion points (including data provided by Third Party Sources) as further described herein. FISCOWL depends on its third party sources, including Ad Times, media delivery by geo, publisher and creative from Traffic Systems and SSP’s (Supply Side Platforms) and Website Data from Google Analytics and others (“Third Party Sources”) for the accuracy and reliability of its information. FISCOWL does not guarantee the accuracy of any information available on the Site including any Advertising Data, and is not responsible for any errors, omissions, or misrepresentations. You acknowledge that FISCOWL is providing the means to place digital media via provided ‘Rate Cards’ with media costs per mille (CPM) and the means to ‘match’ time stamped information and not the resulting data, as FISCOWL has no control over the availability or accuracy of data that is uploaded or imported to create Advertising Metrics or Pacing, Impression and Attribution reports. You agree there is no monetary or non-monetary remediation owed by FISCOWL to You at any time, directly or indirectly, for any reason, as a result of errors or omissions experienced while using AnalyticOwl’s Software, including AnalyticOwl.ai, AnalyticOwl.com and any white labelled version of the Software platforms that are customized for the Customer.

6.2 Advertising Metrics or Pacing, Impression and Attribution reports do not have the ability to quantify the value of any advertising for any business, product or service and should be used with the knowledge that there is always a degree of error to any advertising metrics or report. To make an informed decision about changing advertising budgets, media placements or schedules may require additional information such as market, audience, publisher or ratings data which may not be gathered by FISCOWL. Geographic data is based on Google DMA/MetroID distinctions, or CityID for GA4 Google Analytics properties. For situations involving overlapping or embedded DMAs, data correction can occur to ensure that the geographic coverage area of the stations are accounted for while maintaining the accuracy of advertiser or industry data insights. For more information, please contact your FISCOWL representative. Information provided is always subject to change at any time and without prior notice. FISCOWL does not guarantee or warrant any of the information obtained as a result of using the AnalyticOwl Software.

EXCEPT FOR THE LIMITED REPRESENTATION AND WARRANTIES PROVIDED HEREIN, WE MAKE NO WARRANTY OF ANY KIND AND THE SITE, SOFTWARE AND SERVICES AND ANY RESULTS ARE PROVIDED “AS IS”. WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE. WE HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS AND ANY SERVICES OR INFORMATION PROVIDED THROUGH THIRD PARTY SOURCES ARE PROVIDED “AS IS”.

7. Self-Serve, Managed Service Media Fees. This Section 7 shall only apply to pricing and payment terms for the Self-Serve Media Offering or Managed Service Media Offering. Pricing for all other offerings shall be set forth in a separate agreement, purchase order, statement of work, or other purchasing document, or agreement. Customer shall pay fees Net 30 (thirty) days after digital media has been delivered via media placement ordered at AnalyticOwl.ai, whether Self-Serve or Managed Service. Customer shall pay thirty (30) days in advance for Self-Serve or Managed Service advertising analytics metrics.

7.1 All fees are NON-REFUNDABLE and exclusive of taxes, duties, levies imposed by taxing authorities. Customer fees shall be in U.S. Dollars on AnalyticOwl.ai and AnalyticOwl.com or other such currency if agreed to in writing by both parties. Any unpaid invoice will be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, which is lower, plus all reasonable expenses of collection. Should a Customer exceed their Usage Rights, FISCOWL will notify Customer to reduce their Usage Rights within thirty (30) days or pay a reasonable fee to cover over use.

7.2 A Customer will be charged for the Self-Serve or Managed Service Offering on a per use basis of digital media placed. For the Self-Serve or Managed Service Offering, the billing period shall commence when the Customer creates an Order or Insertion Order on AnalyticOwl.ai for digital media via the provided Campaign Forms. If during the Self-Serve Billing Cycle, or any future billing cycle a Customer orders additional FISCOWL Software offerings available on the Site, its billing cycle will reset and it will receive a pro-rated credit for each additional Software offering that it orders, which will be applicable to the next billing cycle (“Credit”).

8. Termination.

8.1 Either party may terminate this Agreement or an Order in the event that the other party materially breaches any obligation in this Agreement and fails to remedy such breach (if such breach can be remedied) within thirty (30) days. If FISCOWL terminates an Order due to Customer breach, all fees for Order shall be immediately due and payable. Upon termination of expiration of any Order, Customer’s right to access Services shall terminate. Customer agrees and acknowledges that FISCOWL has no obligation to maintain or retain Customer’s Data and that FISCOWL reserves the right to delete or destroy Customer Data at any time following termination or expiration of an Order. Insertion Orders for digital media placed can be terminated at any time and media placed cancelled, paused or changed. Changes to insertion orders for digital media may take up to seventy two (72) hours to take effect and the Customer agrees to pay for all digital media impressions delivered up to the time of cancellation, pause or change.

8.2 You may cancel the Self-Serve or Managed Service Offering at any time for any or no reason upon prior written notice to FISCOWL. If you terminate under this Section 8.2 You will be responsible for all fees in the calendar month that you terminate the Self-Serve or Managed Service Offering and any other fees due prior to such termination.

9. Confidentiality. From time-to-time FISCOWL may disclose or make available to You Confidential Information. During the Term and for a period of three (3) years after, You shall: (a) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care that the You would protect Your own Confidential Information, but in no event with less than a reasonable degree of care; (b) use the Confidential Information, or permit it to be accessed or used, solely as necessary to perform its obligations hereunder; and (c) not disclose any such Confidential Information to any person or entity, except: (i) to FISCOWL’s officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist the FISCOWL, or act on its behalf, to exercise its rights or perform its obligations under the Agreement, or (ii) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction; provided, that You shall first make commercially reasonable efforts to provide the FISCOWL with: (A) prompt written notice of such requirement so that FISCOWL may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at FISCOWL’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. “Confidential Information” means information about business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information of either Party, the terms of this Agreement (including any Proposal) and business operations and strategies, designs, marketing, creative elements, artwork, visual representations, research material and data, specifications, processes, and technological developments, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential." Confidential Information does not include information that, at the time of disclosure: (w) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the You; (x) is or becomes available to You on a non-confidential basis from a third-party source; provided, that such third party is not and was not prohibited from disclosing such Confidential Information; (y) was known by or in the possession of the Customer before being disclosed by or on behalf of the FISCOWL; or (z) was or is independently developed by You without reference to or use, in whole or in part, of any of the FISCOWL’s Confidential Information.

10. Indemnification. You agree to indemnify, defend and hold harmless FISCOWL and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to: (a) Your use or misuse of the Site, Software or Services, or (b) Your breach of this Agreement.

11. Limitation of Liability. IN NO EVENT SHALL FISCOWL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL FISCOWL’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE CLAIM (OR IF TWELVE (12) MONTHS HAVE NOT ELAPSED, THE AMOUNT PAID OR PAYABLE FOR THE PERIOD OF TIME THAT HAS ELAPSED MULTIPLIED TO EQUAL TWELVE (12) MONTHS).

12. Miscellaneous.

12.1 Third Party Services. FISCOWL will from time-to-time engage other people, entities or organizations (including Third Party Sources) without your prior written consent in order to provide the Software or Services, or as otherwise set forth herein or in FISCOWL’s Privacy Notice. We engage a third party (Stripe) to process credit card payments. Such services are governed by Stripe’s terms and conditions; to view terms that may be applicable to you please visit Stripe’s website, currently available at stripe.com/us/privacy. We also engage with multiple third parties to deliver digital media Orders or Insertion Orders. We also engage with third parties, such as Google for access to advertisers’ Google Analytics website metrics and Amazon/AWS for cloud data storage and data/database processing. Customer understands FISCOWL has no control over third party terms and conditions, nor their changes in terms and conditions that may affect FISCOWL services or software.

12.2 Non-Competition. During the Term and for two (2) years thereafter, You shall not directly or indirectly through a third-party agent, subcontractor or vendor, develop, create, sell, market, advertise, promote, solicit the sale of, or offer to sell any products or services that compete with the Software, Service, or otherwise provide financing to, manage, operate, join, control, participate in or be connected with (whether as a member, partner, director, stockholder, consultant or otherwise), permit it or its affiliates’ name to be used in connection with, or render advice to any third party in connection with, any products or services that compete with the Software, services or Deliverables.

12.3 Governing Law. Any action, Claim, or dispute related to the Agreement will be governed by New York Law, excluding its conflicts of law or U.S. federal law.

12.4 Relationship of the Parties. No partnership, joint venture, employment or agency relationship exists between FISCOWL and Customer. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.

12.5 Feedback. CUSTOMER acknowledges and agrees that FISCOWL shall own all right, title and interest in and to any suggestions, enhancement requests, recommendations or other feedback from Customer or its Users relating to the Site, Software, or Services, (“Feedback”). Should any right or interest inure to Customer, Customer hereby agrees to irrevocably assign, and hereby does irrevocably assign all right title and interest in any such Feedback to FISCOWL. Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for FISCOWL notwithstanding anything else contained herein. FISCOWL may freely use, disclose, reproduce, license or otherwise distribute and exploit the Feedback for any purpose without regard to any Intellectual Property Right, payment or other obligation.

12.6 Force Majeure and Third Party Service Delay. Customer agrees and acknowledges that FISCOWL nor its third party providers controls the transfer of data over communication facilities, including the internet and wireless communications, and that the Site, Software and Services may be subject to limitations, data damage, delays or other problems from those third party communications. In no event shall FISCOWL be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, governmental action, pandemic, epidemic, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.

12.7 Notification. Any suspected fraudulent use of e.mail, e.mail violation or spam e.mail using FISCOWL brands should be sent to: adops@owldsp.com

12.8 Digital Millennium Copyright Act Notice (DMCA). If you believe any material on, in, or connected to FISCOWL website brands constitutes copyright infringement, you shall provide FISCOWL with the following information:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work.

(b) An identification of the copyrighted work and location on the website of the alleged infringement.

(c) A written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent or law.

(d) Your name and contact information, including telephone and e.mail address.

(e) A statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the copyright owner.

DMCA notice of claims address is:

Further Terms of Service and Data Partner(s) Terms of Service:

https://www.placeiq.com/privacy/

https://marketingplatform.google.com/about/analytics/terms/us/

https://policies.google.com/privacy

https://www.themoviedb.org/terms-of-use

https://analyticowl.com/privacy-policy

https://analyticowl.com/data-disclaimer

https://analyticowl.com/do-not-sell-my-info

Terms and Conditions of Media Buying

TERMS OF SERVICE

These Terms of Service (including the Customer Presentation, as defined below) represent and constitute the entire media buying agreement (this "Agreement") by and between the FISCOWL entity set forth in the Customer Presentation ("FISCOWL") and each business (each, a "CUSTOMER") executing a Customer Presentation concerning AnalyticOwl.ai digital media services. FISCOWL and Customer may be referred to hereinafter collectively as the "Parties" and individually as a "Party." For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties expressly agree as follows:

1. SERVICES

1.1 PROVISION AND DESCRIPTION OF SERVICES.

FISCOWL will perform certain marketing services on the terms and conditions as further described in the Customer Presentation (the "Services"). As used herein, "Customer Presentation" means the Customer presentation executed by Customer, also referred to as an ‘Order’ or ‘Insertion Order’, as the placement of digital media placed by Customer in a self-serve manner at AnalyticOwl.ai or media placed on behalf of Customer via managed service by FISCOWL and/or their assigned and authorized representative(s), together with any statements of work, work orders, insertion orders or other documents executed by authorized representative(s) of each of the Parties and made subject to this Agreement, including any amendments thereto.

1.2. VIDEO PRODUCTION SERVICES.

The Services may include certain video, audio or display banner ad production services ("Creative Services") as further described in the applicable Customer Presentation and at AnalyticOwl.ai. In connection with any Creative Services, Customer shall promptly supply to FISCOWL all images, photographs, illustrations, graphics, audio clips, video clips, signage, text and other materials that are necessary or desirable for inclusion in the deliverables (the "Customer Creative Assets"). Customer shall comply with all technical specifications and delivery deadlines provided by FISCOWL with respect to Customer Creative Assets or otherwise with respect to the preparation and publication of videos, audio or graphics pursuant to this Agreement. If Customer provides the script for a Video or Audio creative, Customer shall finalize the script before production dates are established. FISCOWL will not have any liability of any kind (including any obligation to provide a "make-good" or payment reduction) with respect to any delay in publication due to any failure by Customer to comply with any applicable specifications or delivery deadlines. Customer hereby grants to FISCOWL an irrevocable license to reproduce, edit, adapt, display, disseminate and otherwise use the Customer Creative Assets in and in connection with the Videos, Audio or graphics and the provision of the Creative Services. FISCOWL may reject any Customer Creative Asset in its reasonable discretion, including for unsatisfactory technical quality or objectionable or unlawful content. FISCOWL's acceptance or use of any Customer Creative Asset will not constitute FISCOWL's confirmation of the suitability or legality of the Customer Creative Assets.

If FISCOWL creates the script for a Video or Audio creative, Customer will be entitled to a maximum of three rounds of review and comment on the script unless expressly stated otherwise in the Customer Presentation. For each Video or Audio, Customer will be entitled to a maximum of three rounds of review and comment, at such stages of production as are determined by FISCOWL, unless expressly stated otherwise in the Customer Presentation. At each round of review, Customer shall ensure that all comments and feedback are consistent with those previously provided by Customer and do not materially change the creative direction of the script and/or Video or Audio creative, as applicable. If Customer requests any changes other than in connection with the three rounds of review or any changes that materially deviate from comments and feedback previously provided by Customer, Customer shall pay additional fees for such services at FISCOWL's standard hourly rates.

Customer shall ensure that all information concerning Customer or any of Customer's products or services that is contained in any Video or Audio or graphic provided or approved by Customer for inclusion in any Video or Audio or graphic will be accurate, complete and not misleading and will not violate any applicable law, regulation, order or other legal and/or regulatory requirements or guidance ("Applicable Law").

1.3. AGENCY.

Customer hereby authorizes FISCOWL to act as its agent with respect to any third party in connection with the Services being provided, and Customer agrees to be bound by the terms and conditions of FISCOWL's agreement with such third party to the extent those terms and conditions do not conflict with the Customer Presentation, Order or Insertion Order or this Agreement. Customer agrees that, during the Term of this Agreement, FISCOWL is authorized to provide Customer's data to third parties to the extent necessary to perform the Services.

2. PRICING AND PAYMENT.

2.1. PRICING.

Customer agrees to pay FISCOWL for its Services in accordance with the pricing set forth in the Customer Presentation. Unless otherwise specified, all fees are exclusive of applicable taxes. Customer shall pay all taxes levied in connection with the Agreement, except taxes based upon FISCOWL's net income, corporate franchise, business license, payroll withholding or property taxes on FISCOWL-owned assets. For the avoidance of doubt, in the event Customer orders any Services to be provided via a third-party platform that FISCOWL is unable to audit, such fees will accrue upon FISCOWL's proof of placement of such advertising.

2.2. PAYMENT.

Unless otherwise set forth in the Customer Presentation, payment of any fees hereunder is due within thirty (30) calendar days from the date of the applicable invoice. Any undisputed amounts not paid within thirty (30) days of receipt of invoice shall accrue interest at a rate of one and one half (1.5%) percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due. The foregoing notwithstanding, FISCOWL may require Customer to provide a deposit or advance payment of fees for Video or Audio or Graphic Production Services as set forth in the Customer Presentation or at AnalyticOwl.ai

3. TERM AND TERMINATION.

The term ("Term") of the Agreement shall begin on the date that Customer executes the Customer Presentation, Order or Insertion Order and continue until the end of the advertising schedule set forth in the Customer Presentation, Order or Insertion Order or as earlier terminated by either Party as set forth herein. If the advertising schedule contemplated in the Customer Presentation, Order or Insertion Order is continuing or scheduled to begin, then either Party may immediately terminate this Agreement upon written notice if: (a) the other Party is in material default of this Agreement or the Customer Presentation and fails to cure such default within ten (10) business days of written notice from the other Party giving notice of such default; or (b) for any reason, without cause, with thirty (30) days' written notice. Upon any expiration or termination of this Agreement, each Party shall promptly return (or at the other Party's request, destroy) any Confidential Information of the other Party.

4. PROPRIETARY RIGHTS.

To the extent provision of the Services involves use of any trademark, service mark, trade dress, trade name or logo designated by Customer (each a "Customer Mark"), Customer hereby grants to FISCOWL and FISCOWL’s designees the right to use the Customer Marks in connection with the provision of the Services (including, if applicable, by incorporating one or more Customer Marks in any Video). Any use of Customer Marks pursuant to this Agreement will inure solely to Customer’s benefit. Nothing contained in this Agreement gives FISCOWL any right, title or interest in the Customer Marks or goodwill therein and thereto, except as expressly provided in this Agreement.

Except as expressly set forth herein, nothing in this Agreement or the Customer Presentation shall affect or modify either Party's ownership rights in, or constitute a grant of rights with respect to, any trademarks, service marks, copyrighted material, technology or other material developed, created or owned by either Party before the effective date of the Agreement ("Pre-Existing Materials"). Without limitation of the foregoing, this Agreement does not convey to Customer any ownership rights, license rights, or other rights of any sort (including without limitation any intellectual property rights) with respect to any data, technology, infrastructure, software, methods or know-how used by FISCOWL and/or any of its contractors in providing Services or with respect to any data generated by FISCOWL in providing the Services (the foregoing, collectively, "FISCOWL Materials"), and in the event Customer obtains any right, title or interest into any FISCOWL Materials, Customer hereby assigns, transfers and conveys the same to FISCOWL.

Unless otherwise specified in the applicable Customer Presentation, Order or Insertion Order, upon full payment of all amounts due to FISCOWL in connection with the Agreement, FISCOWL will be deemed to have assigned to Customer all of FISCOWL’s right, title and interest in and to the Videos or Audio or graphics (including all intellectual property, proprietary and other rights, including copyrights, therein), except for (a) any FISCOWL Materials contained therein and (b) any material or information incorporated in any Video, Audio or graphic that is owned by any third party (“Third Party Material”). Customer’s ownership and use of each Video, Audio or graphic is subject to the rights of FISCOWL with respect to any FISCOWL Materials contained therein and the rights of the owner(s) of any Third Party Material contained therein. For clarity, FISCOWL does not make any representations or warranties with respect to any distribution or other use by Customer of any Video, Audio or graphic other than as expressly described in the Customer Presentation, Order or Insertion Order or after expiration or termination of the Agreement, and Customer shall obtain all permissions, clearances, licenses and rights and make all payments to third parties as may be necessary in connection with any such distribution or use. Until such time as the assignment described above becomes effective, if ever, FISCOWL will own all Videos, Audio or grpahic (whether in preliminary or final form) and all other results and proceeds of the Creative Services and all intellectual property, proprietary and other rights, including copyrights, therein, subject to Customer’s ownership rights in Customer’s Pre-Existing Materials. Until such time as the assignment described above becomes effective, if ever, this Agreement does not convey to Customer any ownership or usage rights with respect to any Video, Audio or graphic and Customer shall not obtain any rights in or to any Video, Audio or graphic or have any right to use any Video, Audio or graphic.

5. CONFIDENTIALITY.

5.1. CONFIDENTIAL INFORMATION.

Pursuant to this Agreement, the Parties may disclose to one another certain confidential or proprietary information ("Confidential Information"), including, without limitation: customer data, tapes, mailing lists, product designs, business and marketing plans, product strategies, pricing information, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of any products. Confidential Information shall also include the terms and conditions of this Agreement and any other materials marked or reasonably considered "confidential" or "proprietary."

5.2. OBLIGATIONS.

Each Party receiving Confidential Information shall: (i) keep and hold the disclosing Party's Confidential Information using the same amount of care the receiving Party uses to protect its own Confidential Information of similar kind and nature, but in no event using less than reasonable care; (ii) except as required by law, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party and/or as necessary to provide the Services or to effect the purpose of this Agreement; and (iii) employ all commercially reasonable steps to protect the disclosing Party's Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information. Customer acknowledges that the sharing of certain Confidential Information with third parties is necessary and will occur in order to provide the Services contemplated herein. Any Party discovering unauthorized disclosure of Confidential Information will, as soon as reasonably practical, report to the other Party such unauthorized disclosure or access and take all commercially reasonable measures to prevent any further unauthorized disclosure or access.

5.3. INJUNCTIVE RELIEF.

The Parties acknowledge that a Party's breach of Section 5.1 and 5.2 may result in irreparable harm and significant injury to the other Party and its customers, and/or partners that may be difficult to ascertain. Without limitation, the non-breaching Party will have the right to seek, in addition to any other remedies that may be available, an immediate injunction in the event of any breach of Section 5.1 or 5.2 without posting bond.

5.4. MANDATED DISCLOSURE.

If a Party is requested or required to provide Confidential Information pursuant to a written court order, subpoena, deposition, regulatory or civil investigation demand, or other process, that Party must (i) unless prohibited by Applicable Law, provide the other Party with prompt written notice and reasonable cooperation and (ii) continue to otherwise protect all Confidential Information disclosed in response to such mandated disclosure.

5.5. ENCRYPTION AND PROHIBITED DATA.

In order to provide the Services, it may be necessary for Customer to provide certain data, including data from Customer's CRM or other databases. Customer must encrypt any personally identifying information, using industry standard encryption measures, before transferring such information to FISCOWL over a public network or on physical media. Customer shall not provide to FISCOWL any of the following information ("Prohibited Data"): (i) a government-issued identification number; (ii) financial or customer account number (including credit/debit card); (iii) an personal information deemed "sensitive information" or "special categories of data" under applicable data privacy laws; (iv) health or medical condition, including Protected Health Information, as defined in 45 CFR 160.103; (v) biometric data, maiden name of any individual's mother; digital signatures, or a complete date of birth; (vi) any combination of data that would permit access to an individual's online account; (vii) any data associated with an individual's status as a person under the age of thirteen (13); or (viii) any information that would permit FISCOWL to uniquely re-identify specific individuals, specific households or groups fewer than twenty-five (25) individuals or values (excluding business contact information related to Customer's personnel). If Customer transfers Prohibited Data to FISCOWL, Customer shall immediately notify FISCOWL, inform FISCOWL of the date, time, and other pertinent information related to the transfer.

6. WARRANTIES.

Customer hereby represents and warrants to FISCOWL that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) neither the Agreement nor Customer's performance of its obligations hereunder violates any law, statute, or regulation and does not breach any other agreement or covenant to which it is a Party or is bound; (iv) that it owns or controls all rights with respect to the Customer Creative Assets and Customer Marks that are necessary in connection with their use pursuant to this Agreement and that the Customer Creative Assets and Customer Marks, and their use pursuant to this Agreement, will not infringe upon, violate or give rise to any adverse claims with respect to any intellectual property, proprietary, personal or other right of any third party or violate any Applicable Law; (v) its Confidential Information has been legally obtained; (vi) the provision of its Confidential Information to FISCOWL does not violate any laws or agreements with third parties; and (vii) it will otherwise comply with all Applicable Law, rules, regulations, guidelines and principles. For any data about a consumer or individual disclosed to FISCOWL, Customer represents and warrants that: (1) it fully owns or has the authority to use such data as contemplated by this Agreement and the Customer Presentation, Order or Insertion Order, and that in obtaining or collecting such data, Customer did not violate the law, any applicable regulations or self-regulatory guidelines, such as those promulgated by the DAA, or the rights of any third party; (2) Customer has the authority to disclose such data to FISCOWL, and to authorize FISCOWL to disclose such data to third parties in order to fulfill the purposes of this Agreement and the Customer Presentation, Order or Insertion Order; and (3) Customer shall not instruct FISCOWL to process or to take any other action with such data that Customer knows or should reasonably know would violate an Applicable Law, FISCOWL's own published privacy policies, Customer's own privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected.

Customer further represents and warrants to FISCOWL that it shall not use FISCOWL's Services to send or facilitate: (i) advertising for adult entertainment, i.e., pornography; (ii) advertising for illegal gambling; (iii) advertising for any other product or service that is illegal in the country or locality in which it is sent or received, including without limitation to discriminate on the basis of race, gender, religion, or sexual orientation; (iv) determining employment eligibility; (v) the determination of credit eligibility; (vi) the determination of health care eligibility; or (vii) the determination of insurance eligibility underwriting and pricing (viii) the combination of any personally identifiable information in violation of Applicable Law, rules, and regulations; or (ix) using or associating any reports or data provided by FISCOWL: (1) with individuals under the age of 13; (2) to create a similar database; or (3) to sublicense, sell, or transmit the such data to others. Customer further agrees that it shall not attempt to re-identify or otherwise reverse engineer the data it receives in connection with the implementation of this Agreement, whether to derive personal information or otherwise from information provided by FISCOWL.

EXCEPT AS STATED IN THIS SECTION 6, THERE ARE NO OTHER WARRANTIES HEREUNDER, AND FISCOWL EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS. CUSTOMER ACKNOWLEDGES THAT ALL NUMBERS OF IMPRESSIONS STATED IN ANY CUSTOMER PRESENTATION ARE ESTIMATES AND NOT GUARANTEES.

To the extent that Customer is using FISCOWL's services to advertise cannabis related products, Customer represents that: (i) Customer is located in a state in which cannabis is legal for medical or adult use, Customer's business complies with that state's laws, including any applicable licensing requirements, and Customer is advertising products or services in states in which it is legal to sell those products or services and in which Customer is licensed to sell those products or services; (ii) any advertisements Customer provides to FISCOWL for publication comply with the laws of the states in which Customer operates and of the states in which the advertisements will run (if different), including all restrictions the state places on cannabis-related advertising; (iii) Customer understands FISCOWL does not represent any ad it has created for Customer complies with state law, nor is FISCOWL responsible for ensuring Customer's ads comply with state law; (iv) the content of Customer's advertisements are not targeted at people under the age of 21 and Customer will not attempt to use FISCOWL's services to target advertisements at people under the age of 21; (v) the content of Customer's advertisements does not link cannabis to a disease or health related condition nor claim or imply that cannabis is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of any disease or other health condition, nor claim or otherwise imply that cannabis is intended to affect the structure or any function of the body; and (vi) FISCOWL has final approval rights on all advertising content and may reject any advertisement in its sole discretion for any or no reason.

To the extent Customer provides or requests that FISCOWL provide advertising of hemp or CBD related products, Customer represents that: (i) Customer is located in a state in which it is legal to sell and advertise the products Customer will advertise with FISCOWL, Customer's business complies with that state's laws, including any applicable licensing requirements, and any applicable federal laws, the products Customer is selling have been legally produced and distributed and Customer is legally authorized to distribute, market, or sell those products under applicable federal and state laws; (ii) the CBD products Customer if advertising (if applicable) are derived from industrial hemp grown in compliance with a federal, state, or tribal program in compliance with the Agriculture Improvement Act of 2018 (sometimes called the "2018 Farm Bill") and are properly considered "hemp" as defined in that law; (iii) any advertisements Customer provides to FISCOWL for publication complies with federal and state law, including all restrictions the state places on hemp-CBD-related advertising; (iv) the content of Customer's advertisements are not targeted at people under the age of 18 and Customer will not attempt to use FISCOWL's services to target advertisements at people under the age of 18; (v) the content of Customer's advertisements does not link hemp-CBD to a disease or health related condition nor claim or imply that hemp-CBD is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of any disease or other health condition, nor claim or otherwise imply that hemp-CBD is intended to affect the structure or any function of the body; and (vi) FISCOWL has final approval rights on all advertising content and may reject any advertisement, in its sole discretion for any or no reason.

7.LIMITATION OF LIABILITY.

EXCEPT WITH RESPECT TO CUSTOMER'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FISCOWL'S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT OR CUSTOMER PRESENTATION SHALL BE LIMITED TO THE AMOUNT PAID TO FISCOWL BY CUSTOMER PURSUANT TO THE TERMS OF THIS AGREEMENT.

These limitations shall not apply to a Party's indemnification obligations and other damages resulting from a Party's gross negligence or intentional misconduct. For purposes of this Agreement, "gross negligence" shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences.

8. INDEMNIFICATION.

Customer agrees to indemnify, defend and hold harmless FISCOWL, its corporate affiliates, and their respective officers, directors, agents, employees, members, agents and representatives ("Indemnified Party(ies)") from and against all third-party claims, demands, actions, suits and proceedings, as well as all associated liabilities, judgments, awards, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys' fees), that may arise against the Indemnified Party as the result of: (i) Customer's breach of this Agreement or failure to comply with any Applicable Laws; (ii) Customer's misappropriation or misuse of FISCOWL Confidential Information or FISCOWL Materials; or (iii) FISCOWL's use of any Customer Assets or other tangible or intangible materials used or accessed at Customer's direction in furtherance of providing the Services. In the event of a dispute arising out of the terms of this Agreement or the Customer Presentation, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys' fees.

9. MISCELLANEOUS.

This Agreement is governed by New York law without regard to its choice of law rules. Any dispute between the Parties shall be resolved exclusively in the state or federal courts located in New York County, to which jurisdiction both Parties irrevocably submit. In the event of conflicting provisions between this Agreement and the Customer Presentation, the terms of this Agreement shall control unless specifically stated otherwise in the Customer Presentation. The Agreement and the Customer Presentation may only be amended in writing. If any one or more of the provisions of this Agreement or the Customer Presentation shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right. Customer may not assign its rights or obligations hereunder without the prior written consent of FISCOWL, which shall not be unreasonably withheld or delayed. FISCOWL shall have the right to delegate and/or subcontract any of its obligations under this Agreement to third parties. Except as expressly set forth herein, there are no intended third party beneficiaries to this Agreement. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence. Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the address set forth above for the recipient of such notice by certified United States mail, return receipt requested, or by a nationwide overnight courier delivery service. Any provision of this Agreement that contemplates performance or observance following termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. If no FISCOWL, LLC entity is set forth in the Customer Presentation, Order or Insertion Order, then "FISCOWL" or “AnalyticOwl”, as used herein, shall mean FISCOWL, LLC. The Agreement, together with the Customer Presentation, Order or Insertion Order, constitutes the entire agreement between the Parties with respect to the subject-matter hereof.