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Attention Intelligence Platform (AIP)Agreement

This Attention Intelligence Platform Agreement (this “Agreement”) is a legal agreement between you (“You” or “Customer”) and Playground XYZ Australia Pty. Ltd., on behalf of itself and its Affiliate (“Supplier”) concerning Supplier’s performance of certain services, which are referred to in this Agreement and defined below as “Services.” The applicable Supplier entity shall be the one set forth in the order form, statement of work, or other transaction document signed or accepted by Customer. Each party herein is referred to individually as a “Party,” or collectively as the “Parties”.

By executing an Order Form referencing his Agreement, Customer is indicating acceptance of this Agreement by Customer and, if applicable, the business entity on whose behalf Customer receives Services and signify Customer’s agreement to be bound by the terms and conditions of this Agreement. This Agreement shall come into force and effect as of the Effective Date. The Effective Date shall be: (i) if applicable, the date in which you click to accept these terms, or (ii) the date set forth in the transaction document referencing this Agreement.

If Customer is receiving Services on behalf of an entity, such as an employer or a client, Customer represents that Customer has the authority to bind such company to this Agreement. If Customer does not agree with all the terms and conditions of this Agreement, please do not accept or register for the Services. In such event, Supplier shall have no obligations to Customer hereunder.

Supplier may amend this Agreement at any time without notice. Any additional or different terms in this Agreement shall be effective upon such terms being posted on this page of Supplier’s website located at the webpage on which these terms appear. Customer’s continued receipt of Services and/or payment of fees following the posting of any additional or different terms in this Agreement constitutes Customer’s irrevocable acceptance of those additional or different terms.

This Agreement constitutes the entire agreement between Customer and Supplier with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. To the extent of any inconsistency between the Order Form and this Agreement, the Order Form will prevail but only to the extent of such inconsistency.

  1. ~Supplier is the owner and operator of a unique attention intelligence platform (“AIP”) which delivers Attention Time measurement and optimization using artificial intelligence, that supports products and services, including but not limited to the PXYZ the Measurement Product; and the Optimization Product.
  2. ~The Services to be provided by Supplier to Customer during the Term of the Agreement are set out in one or more Order Form(s) referencing this Agreement, mutually executed by Supplier and Customer from time to time.
  3. ~Supplier may from time to time, amend, vary or remove any features, functions and other benefits made available to you in respect of the AIP as it sees fit and without prior notice to you. Nothing in this Agreement limits Supplier to provide or maintain any features, functions or other benefits in respect of the AIP.
  4. ~Subject at all times to Customer’s compliance with the terms and conditions of this Agreement, Supplier grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use the Services, the Supplier Materials, the AIP and the AIP data solely to the extent necessary to use and enjoy the Services, and in accordance with the duration and terms as set forth in an applicable Order Form. This license terminates immediately upon the termination of this Agreement.
  1. ~Term. The Agreement commences on the Effective Date and will continue until the earlier of: (i) there is no longer a valid Order Form in effect, or (ii) the Agreement is terminated in accordance with the terms of this Agreement (“Term”).
  2. ~Termination for Material Breach. If there is a material breach of this Agreement by one Party, the other Party may terminate this Agreement, in whole or in part, if the breaching Party fails to cure any such material breach within thirty (30) days after receipt of notice of such breach; provided, however, that Supplier shall have the right to terminate this Agreement immediately upon notice to Customer, without providing Customer with the right to cure, if (a) reasonably deemed necessary by Supplier to avoid imminent harm to its businesses, reputation or goodwill, (b) such material breach was caused by the willful acts and/or omissions of Customer (c) such material breach is incapable of being cured prior to the expiration of the 30-day notice period, as reasonably determined by Supplier, or (d) a Fee payment is more than thirty (30) business days late.
  3. ~Termination for Insolvency. Either party may immediately terminate this Agreement upon notice in the event the other party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, (e) makes a general assignment for the benefit of creditors, (f) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (g) files a petition seeking to take advantage of any other law providing for the relief of debtors, (h) acquiesces to, or fails to have dismissed, within thirty (30) days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws and/or (i) takes any action for the purpose of effecting any of the foregoing.
  4. ~Consequences of Termination. Upon expiration or termination of this Agreement for any reason (i) each Party shall, upon written request, return or permanently destroy all property of the other Party in its possession or control, including all Confidential Information, the Content, any storage devices (tangible or cloud-based), network drives, email accounts, or other accounts; (b) Customer shall immediately cease displaying any Supplier marks on any website or otherwise; (c) if applicable, all rights granted to Customer hereunder will immediately cease, including the right of Customer to access and use the Services; (d) Customer shall pay all amounts payable to Supplier under this Agreement which have accrued or are otherwise payable at the date of termination; and (e) each Party shall certify in writing, within five (5) business days of receipt of request, that it has complied with the requirements of this clause. Termination will not limit any of a Party’s rights or remedies at law or in equity. This section survives termination of the Agreement.
  1. ~Customer shall timely pay the fees set forth in the Order Form. Except as otherwise set forth in an applicable Order Form, upon the execution of a valid Order Form, Supplier shall invoice for all Fees in advance and Customer hereby agrees to pay Supplier all Fees for the Services in US Dollars via the payment method stated in the Order Form. Customer shall pay the fees within thirty (30) days of receipt of an invoice. Any payment made by Customer to Supplier may be applied by Supplier to any amounts owing under Customer’s account with Supplier in a manner that Supplier reasonably sees fit. In the event of any failure by Customer to pay in accordance with this section, then (without prejudice to Supplier’s rights), Supplier may terminate this agreement in accordance with Section 2(B) hereof.
  2. ~Customer agrees and acknowledges that Supplier will not issue a tax invoice for any Fees in respect of Direct Clearing. Direct Clearing Fees will be payable to the service provider directly.
  3. ~Customer is responsible for providing any and all changes to Supplier regarding any changes to Customer’s electronic payment information, and such changes must be made to Supplier in advance of the then-applicable payment due date.
  1. ~The Fees are exclusive of all taxes. Customer is responsible for any duties, customs fees, or taxes (other than Supplier’s income tax) associated with the sale of the Services, including any related penalties or interest, and Customer will pay Supplier for the Services without any reduction for Taxes. If Supplier is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customers provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from payments to Supplier, Customer must provide Supplier with an official tax receipt or other appropriate documentation to support such payments.
  1. ~Account To use the online portal Services on the AIP, Customer must establish an account by signing up through Suppliers website. Customer agrees to provide basic information for account registration purposes. Customer agrees to provide accurate, current and complete information during the registration process and regularly update such information to keep Customer’s Account accurate, current and complete.
  2. ~Account security. Customer’s Account is personal and Customer must not transfer it to a third party or allow a third party to access it. Customer is responsible for keeping Account password credentials secret and secure. Customer must immediately notify Supplier if there is any unauthorized use of Customer’s password, Account, or any breach of security of which Customer becomes aware. Supplier is not liable for any loss caused by any unauthorized use of your Customer password, username or Account.
  3. ~Customer shall fully comply with all Applicable Laws, rules, regulations and industry guidelines, including by not limited to the GDPR and relevant Privacy Laws. Supplier may, in its sole discretion, suspend or cancel your Account if it believes you have breached any terms of this Agreement.
  4. ~Consent. Customer agrees that Supplier may use your Content and Account information: (i) for the purpose of facilitating your participation on the AIP and the provision of the Services to Customer; (ii) for overall benchmarking and analysis of the AIP platform; (iii) to conduct an investigation to determine if Customer has violated any provision of this Agreement. In addition, Customer agrees to receive communications from Supplier, including via e-mail, text message and push notification regarding related products and services. If Customer wishes not to receive any promotional emails from Supplier, Customer may email privacy@playgroundxyz.com or follow the unsubscribe options in such emails.
  5. ~Eligibility Customer acknowledges that the provision of the Services is depended on Customer fulfilling the criteria located at https://www.playgroundxyz.com/aip-eligibility-criteria
  6. ~Customer acknowledge that: Supplier can only provide Services in respect of Impressions; Customer is solely liable for all Impressions pursuant to the terms of this Agreement; the nature, type, quality and availability of the Eligibility Criteria may change at any time during the Term; we may need to update, change or modify the Eligibility Criteria or Services under this Agreement as a result of a change in, or unavailability of, such Eligibility Criteria; we may cease providing access to the affected Services without any liability to you; and Any content that does not meet the Eligibility Criteria during the Term does not affect your obligations under this Agreement and you will not be entitled to any refund, credit or other compensation due to same.
  7. ~Restrictions Customer shall not, and shall not assist or permit any third party to: (i) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast the Services, AIP, or any Supplier Materials; (ii) transmit any computer viruses, worms, trojan horses or other malware through the Services, or use the Services to transmit any of the foregoing; (iii) breach any intellectual property right connected with the AIP or the Service, including by altering or modifying any content, causing any of the content to be framed or embedded in another website, or creating derivative works of the content; (iv) modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or AIP, in any manner whatsoever; (v) use the Service in a manner that breaches any Applicable Law and regulations or in a manner other than those intended by this Agreement; (vi) to use the Services or AIP in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; (vii) attempt to gain unauthorized access to the AIP or its related systems and networks; (viii) make any part of the AIP publicly available in violation of this Agreement or other legal obligation; (ix) use AIP any Confidential Information of Supplier or any of its Affiliates, or otherwise breach any other legal obligation, to build a product of service using similar idea, features, functions or graphics of the AIP.
  8. ~If Customer breaches any of the foregoing, Supplier may, in its sole discretion, suspend the Services or terminate the Agreement.
  9. ~Third Party Content. The Services may enable you to link to, transfer Your Content or Third Party Content to, or otherwise access, third parties’ websites, platforms, content, products, services, and information (“Third Party Services”). Supplier does not control and is not responsible for Third Party Services. Customer is solely responsible for complying with the terms of access and use of Third Party Services, and if Supplier accesses or uses any Third Party Services on your behalf to facilitate performance of the Services, Customer is solely responsible for ensuring that such access and use, including through passwords, credentials or tokens issued or otherwise made available to Customer, is authorized by the terms of access and use for such services. If Customer transfers or cause the transfer of Your Content or Third Party Content from the Services to a Third Party Service or other location, that transfer constitutes a distribution by you and not by Supplier. Any Third Party Content we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. Customer acknowledge and agree that we are not responsible for, and have no obligation to control, monitor, or correct, Third Party Content. We disclaim all liabilities arising from or related to Third Party Content.
  1. ~Each party represents and warrants that: (i) it has power to enter into the Agreement, to comply with its obligations under it and exercise its rights under it, and there are no legal restrictions preventing it from entering into this Agreement; and (ii) that its obligations under the Agreement are valid and binding and are enforceable against it in accordance with its terms.
  2. ~Customer represents and warrants that (i) it will not use the Service, including the Supplier Materials in any way that competes with Supplier’s business; (ii) the information submitted by Customer and all relevant information provided by Customer, including Customer Content, will comply with all Applicable Laws and is accurate; (iii) it will ensure no person uses any part of the AIP to break or infringe any person’s rights (including Intellectual Property Rights), to transmit, publish or communicate material that is defamatory or offensive or in any way damage or interrupt the supply of the AIP; to the extent that Customer uploads any content or Customer Content through the use of the AIP and Services, Customer represent that Customer own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not infringe on any third party Intellectual Property Rights or privacy rights.
  3. ~CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREE THAT CUSTOMER’S USE OF THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM SUPPLIER OR ITS LICENSORS. CUSTOMER’S USE OF THE SERVICE AND ANY MATERIAL DISPLAYED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEMS, HARDWARE, FIRMWARE, SOFTWARE, OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. SUPPLIER WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO, USE OF, OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. EACH OF SUPPLIER AND ITS LICENSORS FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. CUSTOMER UNDERSTANDS THE SERVICES ARE PROVIDED VIA THE INTERNET AND ACKNOWLEDGES AND AGREES THAT NEITHER SUPPLIER NOR ANY OF THE SUPPLIER PARTIES OPERATE OR CONTROL THE INTERNET. AS SUCH, THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
  1. ~Supplier. Supplier retains all ownership in the AIP and the Supplier Materials, including derivative works thereof, and anything developed or delivered by or on behalf of Supplier under this Agreement. The parties hereby agree that ownership of all AIP Data created pursuant to this Agreement, and ownership of any derivative works thereof, immediately vests in Supplier upon its creation. Except for the limited rights and licenses granted to Customer pursuant to this Agreement, nothing shall be construed to restrict, impair, encumber, license, alter, deprive or adversely affect the AIP or Supplier Materials or any of Supplier’s rights or interests therein or any other Supplier intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible.
  2. ~Customer. Customer retains all ownership and Intellectual Property Rights in and to Customer Content. Customer grants to Supplier a limited, non-exclusive and non-transferable license (with no right to sublicense) to host, use process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement.
  3. ~Third Party Content. Customer may have access to Third Party Content through use of the Services. Unless otherwise stated, all ownership and IPR in and to such Third Party Content and the use of such content is governed by separate third party terms between you, and the third party or Supplier and the third party.
  1. ~The parties acknowledge that they may disclose Confidential Information to each other. Neither party shall, without prior written approval of the other party, disclose the other party’s Confidential Information. Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information. A parties Confidential Information shall not include information that: is or becomes part of a public domain through no act or omission of the other party; was in the other parties lawful possession prior to the disclosure and had not been obtained by the other part either directly or indirectly from the disclosing party; is lawfully disclosed to the other party by a third party without restriction on disclosure.
  2. ~A party may disclose the terms of the Agreement or Confidential Information to their: Affiliates, subcontractors, employees and agents necessary for the provision of the Services under this Agreement; and solicitors, auditors, insurers and accountants; on a confidential basis and no less protective than required under this Agreement. This clause survives the termination of the Agreement.
  1. ~The Parties will comply with all applicable requirements under the Applicable Data Protection Laws. Without prejudice to this Section, Customer is responsible for any required notices, consents and authorization related to Customer provision of, and Supplier’s processing of, Your Content (including any Personal Data) as part of and related to the fulfillment of the Services. The parties hereto agree to be bound by the terms and conditions of the Data Processing Agreement set forth at https://gumgum.com/terms-and-policies/clients-dpa
  1. ~Customer shall indemnify, defend and hold Supplier and its Affiliates, and our offices, employees, managers, directors, customers and agents harmless from any and all costs, liabilities, losses and expenses resulting from any claim, suit, action, demand or proceedings brought by any third party against Supplier arising from: (i) any breach of the Warranties; your breach of this Agreement; (ii) the negligence, gross negligence or willful misconduct of you or your employee, agents or contractors; and/or (iii) a failure by you or your employees, agents, contractors or invitees to comply with applicable Laws and regulations.
  2. ~Supplier Indemnification. Supplier agrees to indemnify, defend, Customer and its affiliates and subsidiaries, and its and their respective officers, directors, managers, employees, shareholders, agents or representatives (each, an “Indemnified Party”, or collectively, the “Indemnified Parties”), against any claims, actions, proceedings brought by third parties (together with any damages, judgments, costs, losses and expenses (including, without limitation, reasonable attorneys’ fees and expenses) awarded by a competent court) arising directly as a result of, or relating in any manner to a claim that the Services or AIP violates the intellectual property rights of a third party. The indemnifying party will not agree to any settlement that imposes any obligation or liability on the Indemnified Parties without the Indemnified Parties’ prior written consent.
  3. ~Indemnification Procedure. An Indemnifying Party claiming any indemnification hereunder, shall promptly provide the Supplier with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that in settling any claim, the indemnifying Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the other Party.
  1. ~TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND ITS LICENSORS SHALL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY A PARTY, INCLUDING ANY LOSS OF DATA, LOST REVENUES OR LOST PROFITS, WHETHER OR NOT A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
  2. ~OTHER THAN ANY FEES DUE TO SUPPLIER, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR DAMAGES THAT ARISE FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EACH PARTY’S LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON EXCEED THE AMOUNT PAID OR PAYABLE TO CUSTOMER IN THE TWELVE (12) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
  1. ~Force Majeure Despite any other provision of this Agreement, if a party is unable to perform or is delayed in performing an obligation under this agreement by reason of a Force Majeure Event, then (i) that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event; and (ii) the affected party will not be responsible for any loss or expense suffered or incurred by any other party as a result of, and to the extent that, the affected party is unable to perform or is delayed in performing its obligations because of the Force Majeure Event. A Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected party and could not have been prevented or avoided by that party taking all reasonable steps: acts of God or the public enemy, acts of terrorism, acts of civil or military authority, fires, floods, storms, earthquakes or other inclement weather, accidents, explosions, sabotage, strikes, lockouts or other labor disturbances, national emergency, commotion, unavailability or interruption of energy sources, riots or war.
  2. ~No waiver No forbearance or delay by either party in exercising or enforcing its rights under the Agreement shall prejudice or restrict the rights of either party to exercise or enforce its rights at a later time and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
  3. ~Assignment Customer may not assign this Agreement without the express written consent of Supplier. Supplier may assign its rights under the Agreement by written notice to Customer.
  4. ~No derogation The rights and remedies provided in this Agreement will not affect any other rights or remedies available to either party.
  5. ~Severability If any provision of the Agreement is unenforceable, illegal or void, that provision is severed and the other provisions of this Agreement remain in force.
  6. ~No relationship Nothing contained or implied in this agreement constitutes a party the partner, agent or legal representative of another party for any purpose or creates any partnership, agency or trust. No party has any authority to bind another party in any way.
  7. ~Publicity Notwithstanding any other provision of the Agreement, Supplier may disclose the existence of this Agreement including any outcomes of its provision of the Services under the Agreement (including reach and engagement, but not the Fees or other sensitive commercial details) for the purpose of promotion. For the avoidance of doubt, this does not include disclosure of Confidential Information or any of Your Content. For the avoidance of doubt, nothing in this Agreement shall prevent Supplier from making any public or private statement about your participation on the AIP. Customer agree that Supplier may refer to you by name in connection with the AIP and or the performance of any Services.
  8. ~Application to this Agreement Notwithstanding any term of this Agreement, Supplier may, at any time, and in its sole discretion, modify the terms of the Agreement. Supplier may notify Customer of changes to the Agreement by publishing the Agreement, as amended, to the webpage on which these terms appear.
  9. ~Notices Unless another method is specified, notices required to be given to a party under this Agreement may be given to that party by: email to the last email address nominated in writing by that party for the service of notices; and if that party is a corporation, any method by which a corporation can be served with documents under s 109X of the Corporations Act 2001 (Cth). For the avoidance of doubt Supplier’s email address for service as at the date of this Agreement is info@playgroundxyz.com; and Your email address for service is the email address used to place an order for provision of the Services. A notice sent by email is taken to be given when it is sent, unless the sender receives an automated message indicating that it has not been delivered successfully to the recipient’s mail server. If a notice is sent after 5pm on a Business Day, or on a day which is not a Business Day, then it is taken to be sent at 9am on the next Business Day.
  10. ~Jurisdiction The Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees to submit to the exclusive jurisdiction of the court of the courts located in London, England over any claim or matter arising under or in connection with the Agreement (whether in contract or in tort).
  11. ~Miscellaneous. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement. No subsequent correspondence or document will modify or vary the Agreement unless that variation is expressly accepted or acknowledged in writing by both Parties.