Managed Services Term Sheet (“Term Sheet”):
Exhibit 10.47
Managed Services Term Sheet (“Term Sheet”):
This Term Sheet shall be between NYIAX, Inc. (“NYIAX”) a Delaware Corporation with principal place of business at 000 Xxxxxx Xxx. STE 26-1088 Somerset NJ 08873-1760; and PubMatic Inc., having its registered office at 0 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 (“Company”) in order to utilize NYIAX (“Services”), which shall commence as of September 1, 2021 (“Effective Date”) NYIAX and Company shall also be known as Party individually or collectively the Parties within this Term Sheet.
1. | The initial term of this Term Sheet shall begin as of the Effective Date and shall continue indefinitely until terminated by either party upon thirty (30) days’ written notice (email being sufficient) to the non-terminating party. |
2. | NYIAX Contract Management: Agency (a company which works on behalf of an Advertiser or any Intermediary of an Advertiser who works directly with an Agency) shall communicate all proposed campaign details and Terms and Conditions to NYIAX. These details will be provided to Company. Upon acceptance from Company and confirmation of acceptance from Agency, NYIAX shall supply an Advertising Contract (“Advertising Contract” means, the actual purchase or sale of publisher inventory, the serving of advertising inventory, or the processing of data related to advertising inventory for analysis, using the Services), which will contain all governing campaign details. |
3. | Company shall provide specific publishers’ inventory (on behalf of publisher) for trade through NYIAX with delivery through the Company’s platform. Company shall perform their specific tasks in relation to publisher inventory and delivery of campaigns in their standard xxxxxxx like manner as to any other user of the Company’s platform. |
4. | NYIAX shall provide Contract Management, Reconciliation, Reporting, and Accounting Services, throughout the lifecycle of the Campaign. For this service NYIAX shall take a fee of reconciled Advertising Contract, where reconciled or reconciliation means the final impression volume and number used to generate invoicing and billing to the advertiser or the agency representing the advertiser. Company shall pay NYIAX their reconciled fee net 45 days after receipt of invoice of the campaign, where NYIAX shall invoice Company monthly. |
6. | Accounting Services: Payment from Company shall be provided as per the terms and conditions of the Campaign. Company shall provide a point of contact for communications and accounting details. |
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7. | For the sake of clarity, these terms shall not be precedential as related to future Term Sheets between the Parties. |
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11. | Disclaimers; Limitation of Liability: THE PARTIES PLATFORMS ARE PROVIDED AS AN “AS IS” SERVICE. EACH PARTY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING FOR NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OR TYPE OF CLAIM NEITHER PARTY MAY BE HELD LIABLE UNDER THIS TERM SHEET OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THIS TERM SHEET FOR ANY LOSS OF PROFIT OR REVENUE, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. |
12. | General Provisions: |
a. All notices under this Term Sheet must be in writing (including by email) and will be deemed effective when delivered.
b. This Term Sheet is governed by and construed in accordance with the Laws of the State of New York without regard to the conflicts of law rules thereof and any disputes arising out this Term Sheet shall be exclusively referred to the State of New York.
c. This Term Sheet constitutes the Parties’ entire Term Sheet relating to its subject and supersedes any prior or contemporaneous Term Sheets on that subject, including any exhibits for use of any Services executed prior to the Effective Date of the Term Sheet (collectively, the “Superseded Term Sheets”; provided that any non-disclosure Term Sheet entered into between the Parties will survive execution of this Term Sheet. With respect to deals that were live prior to August 31, 2021, the rates provided in the applicable Superseded Term Sheet(s) will be applied through December 31, 2021; and with respect to any deals effective following September 1, 2021 the rate per this Term Sheet will apply. For the avoidance of doubt, this Term Sheet supersedes each of those certain Superseded Terms Sheets that follow (each of which being of no further force nor effect other than provided for in this Section 10.c.):
1) Managed Services Agreement, effective June 9, 2021, by and between the Parties with respect to Campaigns;
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2) Managed Services Agreement, effective May 11, 2021, by and between the Parties with respect to Campaigns;
3) Managed Services Agreement, effective June 9, 2021, by and between the Parties with respect to Campaigns;
4) Managed Services Agreement, effective April 29, 2021, by and between the Parties with respect to Campaigns; and
5) Managed Services Agreement, effective June 9, 2021, by and between the Parties with respect to Campaigns.
d. If any provision of the Term Sheet is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
e. The Parties are independent contractors, and this Term Sheet does not create an agency, partnership, or joint venture.
f. Notwithstanding anything to the contrary in this Term Sheet, NYIAX does not guarantee any Service will be operable at all times or during any down time caused by outages to any public Internet backbones, networks, or servers, any failures of equipment, systems, or local access services, or for previously scheduled maintenance.
g. The Parties may execute this Term Sheet in counterparts, including PDF, and other electronic copies, which taken together will constitute one instrument, and nothing in this Term Sheet, nor any modification, or supplement, will be legally binding upon the Parties until executed by each Party in accordance with the terms hereof.
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If the terms of this Term Sheet are the understanding of both Parties this Term Sheet, then please sign below. By signing this Term Sheet below signifies the willingness of the Parties to proceed and to be bound by the terms of this Term Sheet.
NYIAX | Company | |||
By: | /s/ Xxxxx Xxxxxx | By: | /s/ Xxxxx Xxxxxxxxx | |
Print Name: Xxxxx Xxxxxx | Print Name: Xxxxx Xxxxxxxxx | |||
Title: | VP of Partnerships | Title: | CFO | |
Date: | September 29, 2021 | Date: | September 29, 2021 |
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