This HULU ATTRIBUTION MEASUREMENT AGREEMENT ("Agreement") is entered into by and between Hulu, LLC ("Hulu") and the company named in an SOW referencing these terms ("Company") and governs the attribution measurement services provided by Hulu ("Hulu Attribution Services"), including the development, provision and use of data (including data collected via a tag or similar technology provided by Hulu), information, reports, technology and related services and materials, including without limitation, attribution reports provided under an applicable SOW (collectively, "Hulu Information") to Company.
Hulu will provide the Hulu Attribution Services for the advertising campaign(s) identified by Company (“Campaign(s)”), pursuant to one or more statements of work or similar documentation (each, an “SOW”); provided that (i) SOWs shall be in a form acceptable to both parties; (ii) an SOW shall be effective upon signature by an authorized Hulu representative and may be amended only with a further signature from an authorized Hulu representative; (iii) to the extent any terms or conditions in an SOW conflict with the terms or conditions of this Agreement, the terms and conditions of this Agreement shall control; and (iv) all SOWs between Hulu and the Company shall be governed by and make reference to this Agreement (or otherwise shall be deemed to refer to this Agreement).
a. Hulu hereby grants to Company a limited, non-transferable, non-exclusive license to use the Hulu Information during the term specified in an SOW. Hulu Information is licensed to Company solely for its internal use for the purposes of evaluating and planning Company’s advertising campaigns. Company may provide access to the Hulu Information during the term to: (a) Company’s advertising agency, solely for the purpose of advising Company, and not for use on behalf of any third party, and (b) to Company’s parent and affiliates. Where Company is an agency, Hulu Information is licensed to Company for use only on behalf of the advertiser whose Campaign was measured, and Company may only disclose Hulu Information to the advertiser about whom such Hulu Information relates. For any and all disclosures of Hulu Information, Company will ensure recipients comply with confidentiality obligations at least as restrictive as those in this Agreement. Company will be responsible for any breach of confidentiality, damages to or claims against Hulu resulting from such disclosures. Company will be liable for the acts and omissions of any third party, including in connection with use of the Hulu Information, to the extent any of such acts or omissions, if performed by Company, would constitute a breach of, or otherwise give rise to liability under, this Agreement.
b. As between Hulu and Company, Hulu retains ownership of the Hulu Information, including any data, information, methodologies and other tangible or intangible materials created, authored, invented and/or used to create the Hulu Information, and any Hulu Trademarks (defined below) and other proprietary information of Hulu. Company shall not challenge, dispute, jeopardize, dilute or adversely affect any proprietary rights of Hulu.
As between Hulu and Company, Company retains ownership of any and all information, including any personally identifiable information, transferred by or on behalf Company to Hulu in connection with the Hulu Attribution Services ("Company File Data"). Company hereby grants to Hulu a limited, non-transferable, non-exclusive license to use the Company File Data for Hulu Attribution Services.
Except as expressly authorized in this Agreement, Company will not otherwise disclose, distribute, resell, sublicense or allow access to the Hulu Information, in whole or in part, to any third party. Company agrees to indemnify, defend and hold Hulu harmless from and against all claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of or relating to Company’s use of the Hulu Attribution Services or disclosure of the Hulu Information outside of Company’s organization or contrary to the terms of this Agreement or any SOW. Hulu and its affiliates may disclose, by means of advertising, press releases, direct mail or other means, summary data or findings reported in any reports provided to Company, in anonymous or masked form, without identifying the Company.
Neither Party (each a “Receiving Party” in this context) shall at any time during the Term or for a period of two (2) years after the expiration of the Term directly or indirectly divulge, furnish, use, publish or make accessible to any person or entity, other than the other party and its affiliates (the “Disclosing Party” in this context any Confidential Information (as defined below); provided, however, that any Confidential Information that constitutes a trade secret or concerning Disclosing Party’s finances (including, prices, costs and revenues) shall continue to be subject to the confidentiality obligations hereunder for so long as such Confidential Information remains a trade secret under applicable law. Receiving Party shall not use such Confidential Information for any purpose other than as provided in this Agreement nor distribute, disclose or disseminate such Confidential Information in any way to anyone except to the minimum number of employees or consultants of Receiving Party with a need to know such Confidential Information in order to provide the Services hereunder; provided, however, that such employees or consultants have been advised of the obligations to protect the Confidential Information and are subject to obligations of confidentiality substantially as protective as those set forth in this Agreement; provided, further, that notwithstanding the foregoing, Receiving Party shall be liable for any misuse of such Confidential Information by such employees or consultants and shall promptly notify Disclosing Party of any misuse or misappropriation of the Confidential Information by Receiving Party’s employees or consultants that may come to Receiving Party’s attention. Upon termination of this Agreement all such records and copies of them shall be returned to Disclosing Party. As used in this Agreement, the term “Confidential Information” means all Disclosing Party information, inventions, confidential and proprietary information and trade secrets Receiving Party receives, learns or obtains during the Term pertaining to the business and operations of Disclosing Party, which information is not generally known in the relevant trade or industry, about Disclosing Party’s business activities, services and processes, including but not limited to information concerning Disclosing Party’s products, services, systems, software, finances (including prices, costs and revenues), marketing plans, programs, methods of operation, prospective and existing contracts, other business arrangements or business plans, procedures, strategies (including acquisition strategies), customer lists, referral sources, and other information concerning Disclosing Party’s practices and procedures. Confidential Information shall not include any information that (i) is in the public domain through no fault of Receiving Party, (ii) was known to Receiving Party prior to its disclosure to Receiving Party, or (iii) was provided to Receiving Party by a third party that was not under a duty of confidentiality to Disclosing Party. Notwithstanding the foregoing, Confidential Information may be disclosed if required to be disclosed pursuant to a valid order of a court or other governmental body of the United States or as otherwise required by law; provided, that, Receiving Party shall provide Disclosing Party prior written notice so that Disclosing Party may seek a protective order or other confidential treatment of such Confidential Information, Receiving Party shall cooperate with Disclosing Party to obtain such protective order or confidential treatment and in the absence of a waiver by Disclosing Party or protective order, Receiving Party shall only disclose that portion of the Confidential Information which its counsel advises is legally required to be disclosed.
Each party agrees at all times to indemnify, defend and hold harmless the other party, its affiliates and each of their respective directors, employees, agents and representatives, and in the case of Hulu, its distributors and sublicensees, from and against any and all claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of or related to any claim resulting from any breach or alleged breach by the indemnifying party of any representation, warranty, or covenant set forth in this Agreement (including any SOW).
THE HULU INFORMATION IS PROVIDED “AS IS.” HULU DISCLAIMS, AND COMPANY WAIVES, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. The foregoing disclaimer shall not act as or constitute an admission by Hulu that any Hulu Information constitutes goods, commodities or tangible personal property under applicable law. Any reports or Hulu Information provided by Hulu are not intended as a substitute for financial, investment, legal or accounting advice and Company remains solely responsible for its decisions, actions and use with respect to those reports. Certain Hulu services may be based on information or technology from third parties and Hulu reserves the right to discontinue furnishing the service or any portion thereof to the extent any such third-party data, information or technology ceases to be available to Hulu for any reason.
IN NO EVENT WILL HULU 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, EVEN IF HULU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF HULU FOR ALL CLAIMS, LOSSES, DAMAGES, AND EXPENSES RESULTING IN ANY WAY FROM THE PERFORMANCE OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL COMPENSATION PAID BY COMPANY TO HULU UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
The term of this Agreement and license grants hereunder is on an SOW-basis and is indicated in an applicable SOW (the "Term"). Either party may terminate this Agreement or an SOW in the event of a material breach by the other party if the breaching party has not cured such breach within thirty (30) days following receipt of written notice describing such breach from the non-breaching party. Upon termination of this Agreement, all rights granted to Company under or pursuant to the Agreement shall revert to Hulu and Company shall cease using the Hulu Information.
Except as required by law or to comply with the request of a governmental entity, Company will not use Hulu’s name, trademarks, service marks, logos or other identifiers (collectively, “ Trademarks”), or make any reference to Hulu or its Trademarks in any manner including, without limitation, Company lists and press releases, without the prior written approval of Hulu.
Company shall not assign or transfer any rights, or delegate any duties, under this Agreement without Hulu’s prior written consent, and any attempted assignment, transfer or delegation without such consent shall be void. Hulu can assign or otherwise transfer Hulu’s rights under this Agreement without the Company’s consent.
This Agreement shall not be amended or modified other than by a written agreement executed by the Company and, on behalf of Hulu, by an officer of Hulu.
If any provision of this Agreement or the application of any such provision 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 shall be construed as if the provision had never been in this Agreement.
No waiver of any breach of this Agreement shall be construed to be, or shall be, 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.
For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when hand delivered, sent by overnight courier, or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Hulu:
2500 Broadway, 2nd Floor
Santa Monica, California 90404
Attn: General Counsel
If to the Company: To the address provided on an SOW between the parties.
This Agreement and the legal relations between the parties shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in such state and without regard to conflicts of law doctrines. Each party consents to the exclusive venue of the state and federal courts located in Los Angeles County, California, for resolving any disputes, claims or actions arising out of this Agreement.
In entering into this Agreement, each party has relied upon the advice of counsel, or has been advised by and has had reasonable time and opportunity to consult counsel of its own choosing. Each party has completely read, fully understands, and voluntarily accepts the terms of this Agreement.
The rights and remedies provided for in this Agreement are cumulative; resort to one right or remedy does not preclude resort to another or to any other right or remedy provided for by law or in equity.
Each party has cooperated in the preparation of this Agreement. Accordingly, this Agreement shall not be construed against any party on the basis that the party was the drafter.
This Agreement can be executed in counterparts, and each counterpart, when executed, shall have the effectiveness of a signed original. Photocopies or electronic images of such signed counterparts may be used in lieu of the originals for any purpose.
This Agreement constitutes the entire agreement and final understanding between the parties concerning the subject of this Agreement and supersedes any prior negotiations and all agreements whether existing, proposed or otherwise, whether written or oral, concerning that subject. No modification of this Agreement shall be valid unless made in writing and signed by the parties hereto.
Each party to this Agreement represents that this Agreement constitutes the legally valid and binding obligation of that party, enforceable against that party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
The Company hereby acknowledges and agrees that any breach of or default under Section 5 of this Agreement shall cause damage to Hulu in an amount difficult to ascertain. Accordingly, in addition to any other relief to which Hulu may be entitled, Hulu shall be entitled, without proof of actual damages, to seek any injunctive relief ordered by any court of competent jurisdiction including, but not limited to, an injunction restraining any violation of Section 5.