1. SUBSCRIPTION SERVICES
1.1 Subscription Services.
(A) The Subscription Services are intended solely for persons who are 18 years or older. Any access to, or use of the Subscription Services by anyone under 18 years old is expressly prohibited. By accessing or using the Subscription Services, You represent and warrant that You and Your Authorized Users (as defined below) are 18 or older.
(A) You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. You shall not: (i) copy, modify, distribute, resell or rent any portion of the Subscription Services; (iii) disassemble, decompile or reverse engineer the Subscription Services or allow any third party to do so, except to the extent such restrictions are prohibited by law; or (iv) transfer any of Your rights hereunder to any third party, except in connection with a permitted assignment of the Agreement.
(B) Notwithstanding the foregoing, You may make the Subscription Services available to Your customers in conjunction with the provision of advertising services to such customers, as part of Your ordinary business activity, provided that the use by Your customers of the Subscription Services shall be subject to all of the restrictions under the Agreement, including, but not limited to, the restrictions under this
(C) You shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and You shall not attempt to gain unauthorized access to the Subscription Services or its related systems or networks. You shall not use the Subscription Services to knowingly transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Subscription Services (i) materials or information which may violate intellectual property rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles for the Subscription Services.
1.3 Data Security and Storage.
AdScale shall maintain appropriate security practices to store the Subscriber Data. In the event of any loss or corruption of Subscriber Data, AdScale shall use its commercially reasonable efforts to restore the lost or corrupted Subscriber Data from the latest backup of such Subscriber Data maintained by AdScale . AdScale shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Subscriber Data caused by any third party not under the direction or control of AdScale . AdScale SOFTWARE’S EFFORTS TO RESTORE LOST OR CORRUPTED SUBSCRIBER DATA PURSUANT TO THIS SECTION 1.3SHALL CONSTITUTE AdScale SOFTWARE’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF SUBSCRIBER DATA. AdScale reserves the right to establish or modify its general practices relating to storage of Subscriber Data.
2. YOUR OBLIGATIONS
2.1 Marketing Support.
During the Term, You grant AdScale the right to (a) publish Your corporate logo on its website and Return on Advertising Spend in marketing materials that include examples of AdScale customers and (b) publicly acknowledge You as a AdScale ustomer in a press release, the content of which, AdScale and You shall mutually approve in advance. In addition, if You and AdScale mutually agree, You will participate in a AdScale customer case study, provided that AdScale covers the costs of Your participation.
You are responsible for Your and Your Authorized Users’ use of the Subscription Services. You shall promptly notify AdScale of any suspected or alleged violation of the Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. AdScale may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to You in the event that AdScale reasonably determines that such Authorized User has violated the Agreement.
2.4 Telecommunications and Internet Services.
You acknowledge and agree that the use of the Subscription Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services, which You must acquire and maintain at Your own cost and expense, including, without limitation, any and all fees and taxes of any kind related to the foregoing. AdScale shall not be responsible or liable for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
2.5 Third Party Interactions.
During Your use of the Subscription Services, You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the Subscription Services. Any such advertising services shall be subject to the terms and conditions of Your arrangements with such Publishers, and AdScale hereby disclaims any and all responsibilities and liabilities related thereto.
(A) In consideration for AdScale providing the Subscription Services, You shall pay to AdScale all the applicable Fees, as provided for in the Order Form, including any third party API costs (i.e., Publisher API costs) that may be billed to AdScale by Your Publishers in the course of providing the Subscription Services to You. All Fees shall commence on the first day of the Term as specified in the Order Form. AdScale will either invoice You for the monthly minimum Fees or the Fees calculated from the percent of spend rate if media activity is Linked to the Subscription Services. Monthly minimum Fees will be due if You make no use of the Subscription Services during a particular month or if Your use of the Subscription Services does not meet the usage minimum specified in the Order Form.
(B) If You incur third party API costs through your use of the Subscription Services and such API costs are billed to AdScale by the Publishers or API providers as a result, AdScale will invoice You all such API costs at no additional mark up and You agree to pay AdScale for such API costs.
(C) You agree to provide AdScale with complete and accurate billing and contact information in the Order Form.
(D) At the end of each month, AdScale will automatically issue an invoice to You or bill Your credit card for the Subscription Services. AdScale in its sole discretion reserves the right (i) to bill You in advance for the minimum monthly Fees as specified in the Order Form and to bill You at the end of each month for any Fees in excess of the minimum Fee or (ii) to provide You with a single invoice at the end of each month for all Fees. Each invoice is due and payable 30 days following the invoice date (subject to credit approval). If You believe in good faith that Your invoice is incorrect, You must contact AdScale in writing within 10 days of the invoice date and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good-faith disagreement. If AdScale has not received payment of invoiced amounts within 10 days after the due date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by AdScale . You shall reimburse AdScale for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 30 days or more overdue, in addition to any of its other rights or remedies, AdScale reserves the right to suspend the Subscription Services provided to You, without liability to You, until such amounts are paid in full.
(E) AdScale shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
(F) Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively,“Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on AdScale ’s net income. All pricing terms other than those publicly disclosed on AdScale website are confidential, and You agree not to disclose them to any third party.
4. PROPRIETARY RIGHTS
(A)Subject to the limited rights expressly granted to You hereunder, AdScale Software and its’ licensors exclusively own and retain all rights, title, and interest in and to the Subscription Services (including all copies of any software used for the provision of the Subscription Services), including all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You are reserved by AdScale .
(B) You hereby grant to AdScale a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback into the Subscription Services and to further market, distribute and sell the Subscription Services with Your Feedback incorporated therein.
(C) You shall exclusively own all rights, title and interest in and to all Subscriber Data. You hereby grant to AdScale a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of the Agreement and for the follow-on period described in Section 7.3(B) to use, store and transmit Your Subscriber Data and to disclose Your Subscriber Data to Publishers for the purpose of providing the Subscription Services to You.
5.1 Definition and Exclusions.
By virtue of the Agreement, the parties may have access to each other’s Confidential Information. AdScale Confidential Information includes, without limitation, the Subscription Services and any software used for the provision of the Subscription Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on AdScale ’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services. Subscriber Data is deemed Your Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
5.2 Use and Nondisclosure.
During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. You understand and agree that AdScale will disclose the Subscriber Data to Publishers for the purpose of providing the Subscription Services to You. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, AdScale shall either destroy or deliver Subscriber Data back to You pursuant to Section 7.3, and shall have no other obligation to You regarding such Subscriber Data under the Agreement.
6.1 Warranty for Subscription Services.
AdScale warrants that (i) the Subscription Services shall perform materially in accordance with the description of the Subscription Services in AdScale Software’s Online Help website, which may be updated from time to time by AdScale , and (ii) the Subscription Services will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- TERM AND TERMINATION
7.2 Termination for Cause.
Either party may terminate the Agreement upon written notice (i) if the other party materially breaches the Agreement and fails to correct the breach within 10 days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be 5 business days, (ii) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law, or (iii) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. In addition, AdScale may terminate an account for which AdScale is not charging You a fee at any time in its sole discretion.
7.3 Rights and Obligations Upon Expiration or Termination.
(A) Upon expiration or termination of the Agreement, Your and Your Authorized Users right to access and use the Subscription Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Subscription Services, and You shall return to AdScale and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to AdScale .
(B) AdScale may destroy or otherwise dispose of any Subscriber Data in its possession unless AdScale receives, no later than 30 days after the expiration or termination date of the Agreement, a written request to deliver to You the then-most recent back-up of the Subscriber Data. AdScale shall make commercially reasonable efforts to deliver such back-up copy to You within 30 days of receipt of such request. If requested by AdScale , You shall pay all reasonable expenses incurred by AdScale in returning Subscriber Data to You. You agree and acknowledge that AdScale has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, after 30 days from the expiration or termination date.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, AdScale shall have no obligation to deliver any copy of the Subscriber Data to You, and may delete such Subscriber Data at any time.
(D) Upon expiration or termination of the Agreement, AdScale shall cease use of Your corporate logo; provided, however, that (i) AdScale shall have a reasonable time to remove Your corporate logo from AdScale Software’s website as well as from any promotional materials, (ii) AdScale shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) AdScale shall not be required to remove any such printed materials from circulation.
Section 3 shall survive any expiration or termination of the Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.2, 4, 5, 6.2, 7.3, 7.4, 8, 9, 10 and 11 shall survive any expiration or termination of the Agreement.
Each party (an “Indemnifying Party”) will indemnify, defend and otherwise hold harmless the other party (the “Indemnified Party”), its officers, directors, employees, agents and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Party’s breach or alleged breach of the Agreement, violation a third party’s Intellectual Property Rights, or any of the Indemnifying Party’s representations and warranties hereunder. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party’s written consent (to be granted or withheld at the Indemnified Party’s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
- LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.2, OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) NOTWITHSTANDING ANY OTHER PROVISIONS OF THE AGREEMENT, IN NO EVENT SHALL AdScale SOFTWARE’S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT OR YOUR ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
10.1 Governing Law.
The waiver by either party of any default or breach of the Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach.
In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
10.4 Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
10.5 Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
10.6 Relationship Between the Parties.
Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Neither party may assign the Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of AdScale Software’s or Your assets, and provided that the surviving entity has agreed to be bound by the Agreement. Notwithstanding the foregoing, AdScale may assign the Agreement to any of its Affiliates without Your prior consent.
10.8 Entire Agreement.
10.9 Equitable Relief.
You acknowledge that a breach by either party of any confidentiality or proprietary rights provision of the Agreement may cause that party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, either party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
10.10 No Third-Party Beneficiaries.
The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to the Agreement may enforce it.
The Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
AdScale may give notice to You by e-mail to Your e-mail address on record in AdScale Software’s account information. You may give notice to AdScale by sending an email to email@example.com.
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with, a party; as used in this definition, the term “control” means the ownership of at least 50% of the equity of that entity or possessing the power to direct or cause the direction of the management of that entity.
“Confidential Information” means any written, machine-reproducible and/or visual materials that are labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within 30 days after disclosure.
“Effective Date” means the date the initial Order Form is signed by You and AdScale .
“Feedback” means comments, and suggestions for improvements relating to the Subscription Services provided by You to AdScale .
“Fees” means the subscription fees and other charges specified in the applicable Order Form(s).
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, with respect to AdScale , data generated by or otherwise derived from Your use of Subscription Services and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Linked to” means the media activity is viewable in the Subscription Services.
“Order Form” means a AdScale Subscription Services order form that specifies the Fees, configuration, subscription period and other details of the Subscription Services to be provided by AdScale .
“Publisher(s)” means one or more third parties, who provide You and/or Your Authorized Users with advertising services that may be accessed through the Subscription Services.
“Subscriber Data” means proprietary data (that does not include personally identifiable information) and information input or authorized to be input by You or by any Authorized Users into, and stored by, the Subscription Services.
“Subscription Services” means AdScale Software’s hosted, online software application, accessible via web browser at the URL www.adscale.com and such other URLs as AdScale may designate from time-to-time and any optional third party services ordered by You and provided to You through AdScale in connection with the Subscription Services.
“Term” means the subscription period specified in the applicable Order Form(s).