Terms & Conditions
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THESE MASTER TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE MASTER TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE MASTER TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.**
1. Services
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. All capitalized terms used but not defined herein shall have the meanings as defined in the Order Form.
2. Proprietary Rights and License
2.1 “Proprietary Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable, or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Proprietary information includes, but is not limited to, knowledge, data or information of a Party, its affiliated entities, customers and suppliers, including but not limited to information relating to products, processes, know-how, designs, formulas, methods, developmental or experimental work, improvements, discoveries, inventions, ideas, source and object codes, data, programs, other works of authorship, and plans for research and development.
2.2 Company shall own and retain all right, title and interest in and to (a) the Company Proprietary Information used by Company to deliver the Services, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology contained within the Work Product, and (c) all Proprietary Information related to any of the foregoing. Customer shall own all right, title and interest in and to the Proprietary Information supplied by the Customer to Company. “Work Product” means any products, information or results delivered pursuant to the Services.
2.3 Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, license to use the Work Product solely in relation to Customer’s activities on behalf of the Customer’s clients, and subject to the Purpose and the terms of this Agreement. Customer grants to Company a non-exclusive, limited, world-wide, fully-paid, royalty-free license to view, use and copy the Customer Proprietary Information (i) to the extent necessary to support the purposes of this Agreement; and (ii) for improving the Company Services.
2.4 Customer agrees that Company may feature the results of Work Product in a publicly available case study or list Customer’s name (including the display of any Customer trademark) for the purpose of identifying the business relationship between the Parties on Company’s website and in other marketing and advertising collateral.
3. Confidentiality and Non Solicitation
3.1 Each Party (each a “ Receiving Party”) agrees that it (i) shall use and reproduce the Proprietary Information of the other Party (the “ Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; (ii) shall restrict disclosure of such Proprietary Information to the Receiving Party’s employees, consultants, funders, or advisors who have a bona fide need to know for such purposes; and (iii) shall not disclose such Proprietary Information to any third party without the prior written approval of the Disclosing Party. Notwithstanding anything to the contrary herein, the Receiving Party shall exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third Parties to whom the Receiving Party discloses Proprietary Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Service Agreement. Notwithstanding the foregoing, it shall not be a breach of this Service Agreement for the Receiving Party to disclose Proprietary Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
3.2 Notwithstanding anything to the contrary herein, the Receiving Party shall not be liable for using or disclosing information that the Receiving Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Proprietary Information; or (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Service Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights.
3.3 The Receiving Party agrees that a breach of this Section 3 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
4. Restrictions and Responsibilities
4.1 By receiving and using the Services, Customer agrees not to directly or indirectly (i) use the Work Product for any illegal purpose or in a manner that it violates any law or rights of any person or third party; (ii) share, disclose or make publicly available the Work Product without Company’s prior written consent; (iii) disassemble, decompile, unlock, reverse engineer, or decode the Work Product in any manner or create any derivative works based on the Work Product; (iv) use the Work Product to create a similar (or lookalike) database without Company’s express written consent; (v) reuse or retransmit the Work Product; (vi) append any of the Work Product to any other file without Company’s express written consent; and (vii) use or permit use of the Work Product in a manner not authorised by this Agreement.
4.2. Customer will not use the Work Product for creating, developing, and/or building look-a-like models for marketing campaign activation without Company’s express, written permission.
4.3. Customer agrees to segregate the Company Proprietary Information and Work Product to assure that Company’s ownership rights are preserved and that the Company Proprietary Information and Work Product can be fully and completely destroyed or returned to Company in accordance with Section 6.
4.4. Customer agrees that Customer is directly responsible for compliance under this Agreement by any persons or entities that obtain Work Product or Company Proprietary Information from Customer.
4.5. Customer acknowledges that Company’s ability to perform the Services is dependent upon Customer’s responsibilities under this Agreement.
4.6. Customer shall ensure that Customer has the necessary authorization to collect and provide the Customer Proprietary Information to Company and for its use in relation to the Services.
5. Payment of Fees
5.1 Customer will pay Company the applicable Fees described in the Order. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.2. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.3 Customer agrees that the Fees and any other charges, rates or levy made by Company are exclusive of all applicable taxes. Customer acknowledges that Customer shall be responsible for all transaction taxes levied on Customer’s use of the Work Product or receipt of the Work Product, including without limitation any sales tax, use tax, excise tax, value added tax (VAT), goods and services tax (GST), consumption tax, business tax, service tax, product sales tax and similar taxes.
6. Termination and Survival
6.1 In addition to any other remedies it may have, either Party may immediately terminate this Agreement upon written notice (or without notice in the case of nonpayment) if the other Party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.2. Upon termination or expiration of this Agreement, Customer shall immediately (i) discontinue use of the Company Proprietary Information, and all information contained therein or derived therefrom; (ii) promptly return all copies, partial copies and any other information containing or evidencing the Company Proprietary Information; and (iii) within 3 days of termination, provide Company with a written certification from an officer of Customer that all of the Company Proprietary Information has either been returned or destroyed in accordance with this Agreement.
6.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Warranties and Disclaimers
7.1 Customer represents and warrants that Customer owns or has sufficient rights in the Customer Proprietary Information that Customer uses with the Services.
7.2. Company represents and warrants that Customer’s use of the Services will not violate or infringe the rights of any third party.
7.3. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
7.4. Each party represents and warrants to the other party that it has full right, power, and authority to enter into and perform its obligations under this Agreement, and undertakes to comply with all applicable laws, restrictions, and regulations of any applicable legal authority or jurisdiction this includes but is not limited applicable industry guidelines and standards regarding consumer notice and choice about online marketing, including, but not limited to, the guidelines set forth by the Network Advertising Initiative.
7.5. Except as expressly set forth in this Section 7, the Services and Work Product are provided “as is” and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
8. Security
8.1 Company will: (i) maintain industry standard technical, organizational and data protection measures sufficient to protect Customer Proprietary Information from unauthorized access, accidental or unlawful destruction, misuse, alteration, or disclosure; and (ii) notify Customer immediately if Company suspects or knows of any unauthorized access to, or misuse of, Customer Proprietary Information.
8.2. Customer will: (i) maintain industry standard technical, organizational and data protection measures sufficient to protect Company Proprietary Information from unauthorized access, accidental or unlawful destruction, misuse, alteration, or disclosure; and (ii) notify Company immediately if Customer suspects or knows of any unauthorized access to, or misuse of, Company Proprietary Information.
8.3. Each party agrees to always keep data exchanged with each other encrypted, both at rest and in transit.
9. Indemnity
Each Party will indemnify and hold harmless the other Party and its shareholders, directors, officers, employees, representatives and professional advisors from any damage, loss, cost or liability (including reasonable legal fees and the cost of enforcing this Agreement) related to any third party claims arising out of the breach by either Party of this Agreement.
10. Limitation of Liability
Notwithstanding anything to the contrary, except for bodily injury of a person or willful misconduct, each Party and its suppliers, officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond a Party’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees actually paid by Customer to Company for the Services under this Agreement, in each case, whether or not the Party has been advised of the possibility of such damages.
11. Miscellaneous
11.1 Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Neither Party’s election not to exercise or enforce any legal right or remedy which is contained in this Agreement, or any other agreement (or which a Party has the benefit of under any applicable law), shall not constitute a waiver of rights and that those rights or remedies will remain available to the Parties.
11.2. If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.
11.3. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party.
11.4. This Agreement will be governed by and construed in accordance with the laws of Delaware, U.S.A., without regard to Delaware’s conflict-of-laws principles. The Parties agree that any claim asserted in any legal proceeding by one Party against the other will be commenced and maintained exclusively in state or federal courts located within the District of Columbia.
11.5. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.