You certify to the Company and agree that You, or Your representative or agent entering into these Terms, are of the legal age of majority in the jurisdiction(s) in which You reside (at least 18 years of age) and have the right and authority to enter into these Terms on Your own behalf, and that if Your representative or agent is entering into these Terms on Your behalf as a company, organization, or agency, that such representative or agent has the right and authority to legally bind You to all the provisions and obligations of these Terms.
You agree to accept and abide by these Terms as presented. Changes, additions, or deletions are not agreed to by the Company, and the Company may deny access to the Platform for noncompliance with any part of these Terms or for any other reason at the Company’s sole discretion.
In consideration of the foregoing and of the mutual promises and covenants set forth herein, You and the Company (each, individually, a “Party” and, collectively, the “Parties”) agree as follows:
1. Definitions. As used herein, the following terms have the respective meanings set forth below:
“Advertiser/Advertisers” means any person who promotes products or services to the general public or a section of the public, whether such person is the purchaser of products or services, or not.
“Ad/Ads” means all forms of representation, promotion and solicitation disseminated to consumers for any purpose related to products or services, including trademarks, images, graphics, text, data, banner ads and links.
“Ad Impression/Ad Impressions” means an Ad fetched from its source and displayed on Your Website(s).
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or governmental authorities and all orders and decrees of all courts and arbitrators.
“CCPA” means the California Consumer Privacy Act of 2018 and its amendment, the California Privacy Rights Act of 2020 (CPRA).
“Chargeable Ad Impression/Chargeable Ad Impressions” means an Eligible Ad Impression that has been accepted by the relevant Advertiser and not returned or rejected.
“Claim” means all third party claims or actions, threatened or filed and, whether groundless, false, fraudulent or otherwise, that directly or indirectly relate to the subject matter of indemnification provisions of these Terms, and the resulting losses, damages, expenses, attorneys’ fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination or expiration of the Terms.
“Code” means the SDK (Software Development Kit), including any associated software files, documentation, software code or other materials made available by the Company that are either integrated with or made part of the SDK. The Code is used, among other things, to monitor and record website traffic and Ad Impressions.
“Company” means Digital Revenue LLC, a California limited liability company having its registered address at 3400 Cottage Way Ste G2 #12615, Sacramento, CA 95825.
“Eligible Ad Impression/Eligible Ad Impressions” means an advertising visitor Ad Impression satisfying the following criteria:
(i) it is based on a user’s genuine interest in receiving the product or service being promoted,
(ii) it passes all validation filters and requirements set by the Company,
(iii) it is posted to the Company in real-time, immediately following a user’s opt-in, and
(iv) it emanates from a user to whom You have displayed no other related offerings of the same product vertical during the visit in which the lead was generated.
“Export Control Laws” means:
all applicable laws of the United States of America relating to the export or re-export of commodities, technologies, products/services and/or information, including, for example, but without limitation, the Export Administration Act of 1979, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the Arms Export Control Act, the International Boycott Provisions of Section 999 of the U.S. Internal Revenue Code of 1986 (as amended), and regulations promulgated by the OFAC,
all applicable trade control legislation of the European Union, including, for example, but without limitation, Regulation (EC) 428/2009 (as amended) on setting up a Community regime for control of exports, transfer, brokering and transit of dual-use items, as well as any applicable rules and regulations laid down or implemented in the member states of the European Union, and
to the extent applicable, the analogous laws of any and all other applicable jurisdictions.
“Fraudulent Ad Impression/Fraudulent Ad Impressions” means an otherwise Eligible Ad Impression that has been returned to the Company or otherwise rejected by the relevant Advertiser as a result of, without limitation, fraud, invalid data (disconnected phone number, undeliverable e-mail address, incorrect contact information, etc.), duplicate Ad Impressions, or click-based leads not being delivered in real-time, immediately following user request.
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679).
“Intellectual Property Rights” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation:
(i) any copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, any registrations and recordings thereof, and any applications in connection therewith, including, without limitation, any registrations, recordings and applications in the United States Copyright Office,
(ii) any letters patent of the United States, any other country or any political subdivision thereof, any reissues and extensions thereof, and any applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof,
(iii) any trademarks, trade names, corporate names, company names, business names, fictitious business names, trade dress, service marks, logos, domain names and other source or business identifiers, and any goodwill associated therewith, now existing or hereafter adopted or acquired, any registrations and recordings thereof, and any applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and any common law rights related thereto,
(iv) any trade secrets arising under the laws of the United States, any other country or any political subdivision thereof,
(v) any rights to obtain any reissues, renewals or extensions of the foregoing,
(vi) any licenses for any of the foregoing, and
(vii) any causes of action for infringement of the foregoing.
“Minimum Payment Threshold” shall have the meaning set forth in Section 15.
“OFAC” means the U.S. Office of Foreign Assets Control.
“Open Source Software” shall have the meaning set forth in Section 6.
“Payment” means any payment or distribution to You in the nature of compensation made in consideration of Chargeable Ad Impressions.
“Personal Information” means any information relating to an identified or identifiable natural person.
“Platform” means programming solution Revloq, including the Code, developed, provided and maintained by the Company that enables placement of Ads on Your Website(s).
“Proprietary Information” shall have the meaning set forth in Section 33.
“Sub-Contractor/Sub-Contractors” shall have the meaning set forth in Section 9.
“Unauthorized Purpose” shall have the meaning set forth in Section 4.
“Visitor Ad Impression Data” shall have the meaning set forth in Section 8.
“Visitor Ad Impression Tracking Tools” shall have the meaning set forth in Section 8.
“Visitor” means any physical (natural) person who visits Your Website.
“Your User Account” shall have the meaning set forth in Section 7.
“Your Website/Your Websites” means the space, including without limitation, homepage, website or e-mail, where You make Content available for viewing or reproduction.
“Your Website Content” means all content, information and applications on Your Website(s) including, without limitation, any media, literary works, musical works, artistic works, sound recordings, text, sound, photographs, video, graphics, edit icons, data, software posted, reproduced or displayed on Your Website(s).
2. The Platform. Under these Terms it is the intention of the Company to place Ads for display on Your Website(s) pursuant to these Terms. The Company has developed and designed the Platform and the Code to enable the placement of Ads on websites of users, such as Your Website(s) as You may, from time to time, specifically identify and agree upon. In order to have access to and use the Platform, You must first obtain written confirmation of approval from the Company. Subject to receipt of approval by the Company, Your continued right to access and use the Platform is conditioned upon establishment of Your User Account and ongoing compliance with these Terms. You agree and acknowledge that the Company may in its sole discretion, refuse to grant approval and/or withdraw approval at any time, for any reason. Failure by You, at any time, to abide by these Terms may, in the Company’s sole discretion, result in immediate withdrawal of the Company’s approval. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for access to and use of the Platform and the Code.
3. Ownership of Platform; Restrictions on Use. The Company owns all right, title and interest in and to the Platform including, without limitation, the Code, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all Intellectual Property Rights inherent therein. You may not, and may not knowingly permit any third party to copy, reproduce, modify, translate, prepare derivative works of, decompile, decipher, disassemble, reverse engineer, attempt to derive source code from, disable, or tamper with the Platform or the Code; or otherwise work around any technology (including Tracking Codes) or technical limitations of the Platform or the Code, or other assets provided by the Company, or other platforms or software developed or utilized by the Company; or otherwise infringe upon the rights of the Company, or any third party related to the Platform or the Code. You acknowledge and agree that You are only permitted to use the Platform and the Code, or other assets or technology provided, as well as any data derived from same, for purposes directly related to use of the Platform and the Code. In addition, You acknowledge and agree that You cannot use, evaluate or view the Platform or the Code, or other assets or technology provided, for any other purpose, including for the purpose of designing or creating a product or service competitive with/to products or services of the Company. If the legal relationship between the Parties under these Terms is terminated by either Party for any reason, You agree that You will immediately cease use of and delete all login credentials, Platform and the Code credentials, or other assets or technology provided as well as any data You have received through same.
4. Grant of License. During the Term and subject to Your compliance with these Terms, the Company grants You a non-exclusive, personal, non-transferable license to access to and use the Platform and the Code for Your internal business purposes. You shall not, and shall not permit any third party under Your control to, use the Platform for any Unauthorized Purpose. If You use the Platform for any Unauthorized Purpose, the Company may take any and all actions as it reasonably deems appropriate, from the issuance of a warning to limiting, suspending, or terminating Your right to use the Platform. “Unauthorized Purpose” means any of the following:
(i) creation of derivative works of, modification, disassembly, or reverse engineering or attempt to discover any source code or underlying ideas of any component of the Platform,
(ii) circumvention or disabling any security or features of the Platform, or attempt to probe, scan, gain access to, or test the vulnerability of the Company’s network and/or the Platform or any systems, networks, servers, computers, devices, or equipment owned, controlled, or used by the Company to provide the services under these Terms unless expressly permitted under an agreement between You and the Company,
(iii) sublicensing, assignment, transfer, distribution, rent, sale of use or access to the Platform (in whole or in part), whether as a service provider or otherwise, or otherwise transfer of rights in or to the Platform,
(iv) upload or provide any information or materials that are defamatory, offensive, abusive, obscene, of menacing character, or that violate privacy or Intellectual Property Rights,
(v) use the Platform to threaten, defame, bully, harass, or harm persons or their property,
(vi) send, store or distribute any malware, viruses or any other routines, code or programs with the intent or effect of damaging, destroying, disrupting, monitoring or otherwise impairing the Company’s, or any other person’s or entity’s, network, computer system, or other equipment, or any third party data contained therein, or
(vii) contest, in any court or other jurisdiction, the validity of any of the Company’s property.
5. Lawful Use of the Platform. You agree to use the Platform only for lawful purposes. The Company reserves the right to monitor Your use of the Platform in order to ensure its lawful use. If You or any of Your Sub-Contractors authorized by You to use the Platform on Your behalf restricts or otherwise inhibits any other third party user’s lawful use of the Platform, such restriction or inhibition shall constitute a material breach of these Terms and shall be grounds for the immediate cancellation of Your User Account, without notice or opportunity to cure.
6. Open Source. Certain items of software included with the Platform may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to these Terms. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in the Terms limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. To the extent there are any conflicts between these Terms and any Open Source Software license corresponding to the open source component(s) of the software included with the Platform, or additional obligations by such Open Source Software license that are not set forth in these Terms, the terms of the Open Source Software license will control. If required by any license for particular Open Source Software, the Company makes such Open Source Software, and the Company’s modifications to that Open Source Software, available by written request to the Company at the email or mailing address of the Company specified under Contacts.
7. Your User Account. When accessing the Company’s website and the Platform, You will be directed to establish an account with the Platform (“Your User Account”). Establishing Your User Account requires that You provide to the Company Your designated email address and select and enter a password. Your User Account is used to enable access to and use of the Platform, download and place the Code on Your Website(s), and to store your profile information, statistics, and the status of Payment requests and Payments made to you. You hereby authorize the Company to obtain and store Your User Account information as necessary to make the Platform and the Code available to You. You represent and warrant that:
(i) all required information You submit is truthful and accurate,
(ii) You will maintain the accuracy of such information, and
(iii) use by You of the Company’s website and the Platform will not violate any U.S. or other applicable law or regulation (e.g., You are not located in an embargoed country or are not listed as a prohibited or restricted party under Export Control Laws).
You agree to maintain accurate, complete, and up-to-date information in Your User Account. Failure to do so, including having an invalid or expired payment method may result in your inability to access and use the Platform, and may result in termination by the Company of the legal relationship established with You under these Terms. You shall be entirely responsible for maintaining the confidentiality of Your User Account login information and for all activities that occur under Your User Account. You agree to maintain Your password or Platform token securely to prevent others from gaining access without Your permission. You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use, of Your User Account or any other breach of security. The Company shall not be liable for any loss or damage arising from failure by You to comply with the above requirements. The Company ensures that each user of the Platform has one or more unique user identification names and passwords for access to and use of the Platform. Your User Account cannot be shared or used by more than one authorized user.
8. Use of Visitor Ad Impression Tracking Tools within the Ads. The Company may, from time-to-time, insert certain data mining tools within the Ads which will enable the Company to measure Your performance and determine the amount of Payments owed to You (“Visitor Ad Impression Data”). You agree and acknowledge that all Visitor Ad Impression Data shall be the sole property of the Company. You further agree and acknowledge that You may not share any such Visitor Ad Impression Data with any other third party or entity without the prior written authorization of the Company. These data mining tools include, but are not limited to, embedded tags, source codes, links, pixels and modules (the “Visitor Ad Impression Tracking Tools”). You agree that You shall not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Visitor Ad Impression Tracking Tools and/or other technology and/or methodology required or made available by the Company to be used in connection with any Ads. The Company is responsible for tracking all Eligible Ad Impressions, Chargeable Ad Impressions, Fraudulent Ad Impressions, and Payments.
9. Sub-Contractors. For purposes of these Terms, any reference to You shall include any and all of Your agents, partners or affiliates providing services to You and/or on Your behalf in connection with the services contemplated hereunder (collectively, “Sub-Contractors”). Notwithstanding anything in these Terms stated to the contrary, You shall at all times remain responsible and fully liable for any and all acts and/or omissions of Your Sub-Contractors, and for ensuring that each such Sub-Contractor complies with any and all obligations, restrictions and other terms applicable to You under these Terms.
10. Your Website Content. You shall be responsible for developing all aspects of Your Website Content. You represent and warrant that You are the legal owner or the lawful licensee of any and all Intellectual Property Rights associated with Your Website Content.
11. Compatibility. The Company does not warrant that the Platform and the Code will be compatible or interoperable with Your computers or any hardware, software, or equipment installed on or used in connection with Your computers. You are responsible for properly configuring your own computers and taking Your own steps to maintain appropriate security and protection of Your Website Content, including using encryption technology to protect Your Website Content from unauthorized access and routinely archiving Your Website Content.
12. Rejection, Removal or Modification of Ads Placed on Your Website(s). Any Advertiser may reject or remove a specific Ad from Your Website(s) at any time for any reason. For example, an Ad may be removed by an Advertiser if it violates the policies of such Advertiser or if the Advertiser believes the Ad would expose the Advertiser or any of its business partners to liability. Any Advertiser may modify any Ad placed on Your Website(s) at any time. In addition, each Advertiser has the right to refuse placement of any Ad on any of Your Website(s) for any reason.
13. Modifications of the Platform and the Code. The Company may, in its sole discretion, release subsequent versions and/or updated versions of the Platform and the Code and require You to use the most current version. Such releases may affect functionality of the Platform and may require You to make changes to your own systems at Your own cost to continue to be compatible with or interface with the Platform or the Code. The Company may conduct maintenance on, stop providing, and/or change the method of access to the Platform or the Code at any time, with or without notice to You. For the avoidance of any doubt, the Company, in its sole discretion, may temporarily or permanently suspend access by You to and/or use by You of the Platform or the Code under these Terms. The Company shall not be liable for any costs, expenses, or damage which You may incur as a result of said maintenance, suspension, or changing the method of access to and/or use of the Platform or THE CODE. IF ANY CHANGE IN THE METHOD OF ACCESS IS UNACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THESE TERMS. CONTINUED ACCESS TO AND/OR USAGE OF THE PLATFORM AND THE CODE FOLLOWING CHANGE IN THE METHOD OF ACCESS TO THE PLATFORM OR THE CODE CONSTITUTES IRREVOCABLE AND BINDING ACCEPTANCE OF THE CHANGE BY YOU.
14. Payments. Subject to the Minimum Payment Threshold requirement, the Company shall make Payments to You according to the Terms and Conditions of Payment available on the Company’s website based upon the total number of Chargeable Ad Impressions (as determined by the number of Eligible Ad Impressions tracked and reported by the Company, offset by any Fraudulent Ad Impressions). You agree that the Company shall make Payments to You after deduction of any taxes required to be withheld under Applicable Law. All determinations made by the Company in connection with the Chargeable Ad Impressions, Eligible Ad Impressions, Fraudulent Ad Impressions, payment from Advertisers, and any associated amounts due to You shall be final and binding upon You. Notwithstanding the foregoing, You agree that the Company, in its sole discretion, may withhold all payments due and owing to You until such time as the relevant Advertiser has paid Company pursuant to the associated Advertisement and/or for any other reason whatsoever. The Company reserves the right to reduce the amount of Payments otherwise owed to You where the Advertiser has offset corresponding payments owed to the Company as a result of Fraudulent Ad Impressions. In no event shall the Company be liable to make any Payments to You for any Fraudulent Ad Impressions and/or any other Ad Impressions rejected by the relevant Advertiser for any reason whatsoever. The Company’s obligations under these Terms do not involve or include investigating or resolving any claim or dispute involving You and any Advertiser or other third party.
15. Minimum Payment Threshold. Payments shall be made to You provided that You have accumulated at least thirty US dollars (US$ 30) (the “Minimum Payment Threshold”). You agree that if at any time You have not accumulated the Minimum Payment Threshold, then the amount due to You will continue to roll over until an amount equal to or greater than the Minimum Payment Threshold has been accrued.
16. No Payment in the Event of Fraud. Irrespective of the provisions in Sections 14 and 15, the Company shall not be responsible to make Payments to You where the Ad Impressions on any of Your Websites have been generated by means of using fraud or are in breach of these Terms. In addition, where Ad Impressions on any of Your Websites have been generated by means of using fraud or in breach of these Terms, the Company reserves the right to:
(i) withhold and/or cancel Payments due and owing to You at any time, in the Company’s sole discretion,
(ii) cancel Your User Account, without notice or opportunity to cure, and
(iii) recommend inclusion of Your name into blacklist maintained by any Advertiser.
17. Visitor Ad Impression Generation Fraud. The Company monitors all Platform-related activities for potential Ad Impression generation fraud. If, at any time, the Company suspects or detects fraud, the Company reserves the right, in the Company’s sole discretion, to immediately terminate Your approval to access and use the Platform pending further investigation. You agree and acknowledge that the Company, in its sole discretion, shall be responsible for determining the existence of fraud; and You shall be bound by all such determinations. Upon a good faith determination of fraud by the Company, You agree and acknowledge that You bear the burden of proving to the Company that You did not engage in fraud. If You fraudulently generate Ad Impressions or inflate Ad Impressions by fraudulent traffic generation, as determined solely by the Company, then You shall forfeit Your entire Payments for all Ads placed on Your Website(s) and such fraudulent Ad Impression generation shall constitute a material breach of these Terms and shall constitute grounds for the immediate termination of the Terms, without notice or opportunity to cure. If You are notified that fraudulent activities may be occurring and You fail to take prompt action to stop the fraudulent activities, then in addition to any other remedies available to the Company, You shall be responsible for all costs and legal fees arising from these fraudulent activities. Additionally, in the event that You have already received Payments based upon fraudulent activities, the Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from You.
18. Taxes. You shall be responsible for all use taxes, value added taxes, duties, levies, and similar taxes or impositions imposed by any taxing authority in any jurisdiction in relation to Your access to and use of the Platform. To the extent that Your access to and use of the Platform constitutes products or services provided or performed in a country where the Company has no permanent establishment, You shall pay (or reimburse the Company for) all withholding taxes or similar impositions imposed by any taxing authority in any jurisdiction in relation to Your access to and use of the Platform. In the event that any taxing authority imposes any tax compliance responsibility on You including, without limitation, reverse charge accounting, self-accounting, or reporting, You shall take full responsibility for such compliance obligations. The provisions of this Section 18 shall survive the termination or expiration of these Terms.
19. Representations and Warranties.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(i) it has the full right, power and authority to enter into the legal relationship under these Terms,
(ii) the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound,
(iii) when executed and delivered by such Party, the Terms will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its provisions, and
(iv) it has the full corporate right, power and authority to perform the acts required of it hereunder.
20. Your Representations and Warranties. You represent and warrant that:
(i) You and Your Sub-Contractors, will comply with any Applicable Law,
(ii) You own and/or have any and all rights to permit the use of the Your Website Content on any of Your Websites,
(iii) You have a reasonable basis for any and all claims made within Your Website Content and any of Your Websites and possess appropriate documentation to substantiate such claims,
(iv) You will not disable “back” browser functionality to prohibit end users from returning to the website from which the Ad was selected, if applicable,
(v) You are not, nor are You acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the OFAC,
(vi) You are not, nor are You acting on behalf of any person or entity that is a Special Designated National (SDN), as OFAC may from time to time designate, and, without limiting the foregoing, You shall ensure that the following shall fully comply with GDPR:
(a) Your internal security policies and procedures, encryption technology, personnel oversight and networks associated with consumer data or personal data,
(b) Your record keeping practices in connection with consumer data or personal data obtained, stored, utilized and/or transferred to third parties,
(c) Your procedures for preventing a breach of consumer data or personal data and responding in the event that a consumer data or personal data breach occurs,
(d) Your policies and procedures related to cross-border transfers of personal information, and
(e) Your policies for honoring the right of consumers to access, modify and delete their respective consumer data or personal data records, including Your policies regarding compelling third parties with which You have shared consumer data or personal data to honor same. You will require each party with which You share consumer data or personal data to represent and warrant that each such third party will fully comply with the provisions of Sub-Sections (vi)(a) – (vi)(d) contained in this Section 20, and
(vii) You are in compliance and will maintain compliance with and take reasonable measures to ensure that Your personnel, Sub-Contractors and agents are in compliance and will maintain compliance with all Applicable Law, including specifically, but without limiting the foregoing, those relating to bribery or corruption, and that You will inform the Company without undue delay if You or any of Your personnel, Sub-Contractors or agents have been or are hereafter investigated for or charged with bribery, corruption or similar conduct by any agency or tribunal of competent jurisdiction.
21. Disclaimer. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER INCLUDING THAT THE PLATFORM OR THE CODE ARE ERROR-FREE OR THAT OPERATION OR USE OF THE PLATFORM OR THE CODE WILL BE SECURE OR UNINTERRUPTED. THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. THE SERVICE PROVIDED BY THE PLATFORM AND THE CODE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS AND SHALL NOT HAVE ANY LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE PLATFORM OR THE CODE TO DELIVER AN ELECTRONIC COMMUNICATION, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
22. Indemnification by the Company. The Company shall, at its expense, defend You from or settle any Claim against You to the extent:
(i) that the Platform infringes or misappropriate any Intellectual Property Rights of any third party, or
(ii) arising out of gross negligence or willful misconduct on the part of the Company,
and indemnify You from all damages, costs, and attorneys’ fees finally awarded and unappealable against You as a result of such Claim.
The Company shall have no obligation under this Section 22 for any Claim to the extent arising out of or is based upon:
(a) Your use of the Platform not in compliance with these Terms,
(b) Your combination of the services provided by the Platform with software, hardware, system, data, or other materials not supplied or authorized by the Company or without the Company’s prior written authorization,
(c) any of Your Website Content appearing on Your Website(s) or Personal Information, or
(d) any Claim otherwise precluded under Section 21, Disclaimer.
In the event of an infringement or misappropriation Claim involving the Platform is brought or threatened, or is likely to be brought or threatened in the Company’s reasonable opinion, the Company may, at its sole option and expense:
(I) procure for You the right to continue to use the Platform,
(II) modify the Platform in a manner that does not materially degrade the Platform’s functionality, or
(III) terminate the affected segments of the Platform.
Notwithstanding anything else herein, the foregoing indemnification obligations are the Company’s only obligations and liability, and Your exclusive remedy, in respect of any infringement or misappropriation Claim.
23. Indemnification by You. You shall, at Your own expense:
(i) defend the Company from or settle any Claim against the Company, its affiliates, licensors and suppliers arising out of:
(a) breach by You of Sections 3, 4, 5, 17 or 20,
(b) third party claims that Your Website Content appearing on Your Website(s) infringes on any third party’s Intellectual Property Rights, or
(c) Your gross negligence or willful misconduct, and
(ii) indemnify the Company from all damages, costs, and attorneys’ fees finally awarded and unappealable against the Company as a result of such Claim.
24. Indemnification Procedure. Each Party seeking indemnification hereunder shall provide the other Party with:
(i) prompt written notice of any Claim for which indemnification is sought,
(ii) complete control of the defense and settlement of such Claim, and
(iii) reasonable assistance and cooperation in such defense at the indemnifying Party’s expense.
Notwithstanding the foregoing, the indemnifying Party may not enter into a settlement of a Claim that involves a remedy other than the payment of money by the indemnified Party (which amounts must be subject to indemnification by the indemnifying Party) without the indemnified party’s written consent (which consent shall not be unreasonably withheld or delayed).
25. Inappropriate Ads. You understand that the Company in due diligence cannot monitor all of Your Websites for appropriate content and the Company may not be held responsible for the content of any of Your Websites. If You reasonably determine that the placement of any Ad by the Company hereunder harms Your goodwill or reputation or disparages or brings You into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then the Company shall use commercially reasonable efforts to remove such Ad promptly following Your notice thereof to the Company; provided, however, that if the Company reasonably believes that removal of an Ad from any of Your Websites will have a material impact on the Company’s or Advertiser’s ability to deliver advertisements, the Company may condition such compliance on You providing an extension of the flight dates.
26. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR:
(I) ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE, (HOWEVER ARISING, UNDER ANY THEORY OF LIABILITY) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE PLATOFORM, THE CODE, OR THESE TERMS AND CONDITIONS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
(II) DIRECT DAMAGES IN EXCESS OF PAYMENTS ACTUALLY MADE OR DUE TO YOU UNDER THESE TERMS AND CONDITIONS DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM RESULTING IN SUCH DAMAGES AROSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS DO NOT APPLY TO THE COMPANY’S INFRINGEMENT INDEMNIFICATION OBLIGATIONS, YOUR INDEMNIFICATION OBLIGATIONS, OR YOUR FAILURE TO REMIT ALL FEES PROPERLY DUE AND OWING UNDER THESE TERMS.
27. Term and Termination. The legal relationship of the Parties under these Terms shall commence on the Effective Date and continue for a period of twelve (12) months (the “Initial Term”). Thereafter, the Term shall automatically renew on an annual basis (the Initial Term, together with each such annual renewal, the “Term”). Either Party may terminate the legal relationship under these Terms at any time during the Term, with or without cause, upon no less than thirty (30) calendar days’ prior written notice to the other Party prior to the expiration of the then current term. Either Party may terminate the legal relationship under these Terms immediately upon written notice if the other Party is in material breach of the Terms. On termination of these Terms:
(i) all licenses granted to You under these Terms shall terminate and You shall immediately remove any Ads from your Website(s),
(ii) the Company may deactivate any links and remove any Ads from Your Website(s) to the extent the Company is technically capable of doing so, and,
(iii) in the event of breach by You of Your obligations under Sections 3, 4, 5 or 17 of these Terms, unpaid Payments as of the date of termination, or accruing after the date of termination, shall be forfeited to the Company irrevocably and You hereby waive any right or entitlement to recover such Payments from the Company.
28. Consequences of Termination. Upon termination of these Terms, You shall immediately discontinue use of the Platform and the Code, promptly delete and remove any and all references to the Platform or the Code from all web pages, scripts, applications, and other software in Your possession or under Your control and promptly destroy and remove from all computers, hard drives, networks and other storage media all copies of the Platform and the Code. The Company shall not be liable for any costs, expenses, or damages arising as a result of termination of these Terms by either Party. Any termination of access to the Platform will also immediately terminate any and all licenses granted to You hereunder.
29. Unilateral Suspension or Discontinuation by the Company. The Company reserves the right, in its sole discretion (for any reason or for no reason) and at any time without notice to You, to:
(i) suspend or discontinue the Platform, including its availability to You, and/or
(ii) suspend or terminate any of Your rights under these Terms to access and/or use the Platform and the Code.
30. Compliance with Export Control Laws. You acknowledge that the Platform is or may be subject to Export Control Laws. Without limiting any other provision of these Terms, You acknowledge, agree, represent and warrant that You will not, and that You will take reasonable measures to ensure that Your personnel, Sub-Contractors and agents do not, use, distribute, divert, transfer or transmit, or permit or facilitate any other person or entity to use, distribute, divert, transfer or transmit, any product, service, technology, data, information, material or software derived from the Platform (even if incorporated into other products or services, technology, data, information, material or software), except in compliance with and as authorized/permitted by such Export Control Laws, and, if requested by the Company, You acknowledge, agree, represent and warrant that You will execute all documents and provide such other assistance as may be reasonably requested by the Company in order to comply with Export Control Laws, including obtaining any export licenses or permits as may be required under the applicable Export Control Laws.
31. Consumer Data Obtained by You. You represent and warrant that all and any consumer data forming part of Your Website Content published on any of Your Website(s) will be used for legal purposes and You will indemnify, defend and hold harmless the Company and Advertisers from any Claim (including without limitation reasonable attorney’s fees) which result from any Claim brought or sought against the Company that allege consumer data was used for any purpose in violation of any Applicable Law. The indemnity obligations in this Section 31 are contingent upon the Company giving You prompt written notice of any such Claim against the Company or any Advertiser. The provisions of this Section 31 shall survive the termination of these Terms.
32. The CAN-SPAM Act. You represent and warrant that You are in full compliance with the CAN-SPAM Act of 2003 and any other laws applicable to commercial emails. You agree to indemnify, defend, and save the Company harmless from any Claim brought against You or the Company in the consequence of Your obligations under the CAN-SPAM Act or other laws applicable to commercial emails.
33. Confidentiality. The Parties have disclosed or may disclose to each other certain information relating to each Party’s business (including, without limitation, data and other information pertaining to Your Website(s), affiliates or vendors), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information”. Proprietary Information does not include information that each Party can document:
(i) is or becomes through no improper action or inaction of each Party generally known by the public,
(ii) was in its possession or known by it without restriction prior to receipt from the other Party, or
(iii) becomes available to a Party from a source other than the other Party having no obligation of confidentiality.
The Parties agree:
(a) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each Party employs with respect to its most confidential materials, but in no event with less than a commercially reasonable degree of care),
(b) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Your advertising campaign,
(c) not to copy any Proprietary Information for any purpose whatsoever without written permission from the other Party, and
(d) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each Party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein.
Each Party will be responsible for a breach of these Terms by any of its representatives. Each Party shall promptly notify the other Party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other Party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
You agree that the Company has the right to use and publish Your logo(s), name(s) and campaign data and statistics for informational and public relations purposes, including but not limited to case studies, presentations and press releases.
34. No Exclusivity. These Terms are not exclusive, nor do they impose any obligation upon either Party with respect to competing relationships or opportunities.
35. Proprietary Relationships. The Company maintains proprietary relationships with Advertisers. With the exception of documented, preexisting relationships with Advertisers entered into in the ordinary course of Your business, You agree not take steps aimed at soliciting, inducing, recruiting or encouraging, directly or indirectly, any Advertiser that You know, or have reason to know, is an Advertiser that maintains a legal relationship with the Company, including, without limitation, with respect to the placement or hosting of advertising in any form without the express, written consent of the Company. You understand, acknowledge and agree that in the event of a breach of the forgoing representations by You, the Company shall be entitled to injunctive or other equitable relief as a remedy therefor, without the necessity of posting a bond or other security with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and the Company shall be entitled to monetary damages to the maximum extent permitted under Applicable Law.
36. Data Privacy. Each Party shall comply with Applicable Law with respect to data privacy and data protection. You:
(i) shall not upload, transmit or store on the Platform any Personal Information,
(ii) shall not, without the Company’s prior written consent, upload, transmit or store any information that may be deemed personal data or personal information of any individual person by Applicable Law (including but not limited to the CCPA, Gramm- Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, and Family Educational Rights and Privacy Act) other than Personal Information that is expressly requested in a data field of the Platform.
Either Party shall notify the other Party within 48 hours in relation to the receipt of any complaint, notice, or communication received from any regulatory authority or individual which relates directly or indirectly to the processing of the Personal Information or to either Party’s compliance with Applicable Law. Depending on Your location and the location of Your customers, the following provisions may also apply:
California. This Sub-Section shall apply if You have customers located in California. For purposes of the CCPA, You acknowledge and agree that the Company is a “service provider” as defined in the CCPA and is receiving the Personal Information for a business purpose. As a service provider, the Company may use the Personal Information supplied by You:
(a) to process or maintain personal information obtained on the Platform in compliance with these Terms,
(b) for internal use by the Company to build or improve the quality of the Platform, provided that use by the Company of the Personal Information does not include building or modifying household or consumer profiles to use in providing services to another business, or correcting or augmenting data acquired from another source, or
(c) to detect data security incidents, or protect against fraudulent or illegal activity.
If any consumer (as defined under the CCPA) sends a request to exercise rights under the CCPA to the Company, the Company shall refer the consumer to You and inform the consumer that the request cannot be acted upon because the request has been sent to a service provider.
EEA and the UK. This clause shall apply if You have customers located in any of the European Economic Area (EEA) and the United Kingdom (UK). For purposes of the GDPR, You acknowledge and agree that the Company is a “data processor” as defined under the GDPR.
37. Access and Use Where Prohibited. Access to and use of the Platform and the Code are unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this Section 37.
38. Export Compliance. The services provided by the Platform, the Code and other technology of the Company, as well as derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list or OFAC sanctions list. You will not permit any customer to access or use the Platform in a U.S.-embargoed country (currently Belarus, Cuba, Iran, North Korea, Russia, Sudan or Syria) or in violation of any U.S. export law or regulation and will not permit any U.S.-sanctioned persons or entities to act as customers, and You shall indemnify the Company in respect of any breach of this Section 38.
39. Governing Law; Venue. These Terms and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each Party consents to the exclusive jurisdiction and venue of the courts in Sacramento, California. You agree to indemnify the Company for all of its reasonable attorneys' fees and costs incurred as a result of any Claim brought by You or the Company in which the Company is found to be the prevailing party. You hereby irrevocably waive any and all right to trial by jury in any action, suit, proceeding, claim or counter-claim arising under or in relation to these Terms. You agree that You may bring Claim only in Your individual capacity and not as a plaintiff or class member in any purported class action or representative action.
40. Entire Agreement. These Terms embody the complete and exclusive agreement between the Parties relating to the subject matter hereof. The Terms supersede all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to this subject matter. You agree that the Company may amend these Terms in its sole discretion without notice, and You agree, further, that You will be bound by any changes to the Terms in exchange for Your continued use of the Platform. When the Company amends these Terms, the Company may provide You with a notice of modification upon the Platform login that an updated version of the Terms has been posted to the Company’s website.
41. Severability. If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable in any respect or to any extent, such term, condition or provision will in that respect or to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
42. Waivers. No waiver of any provision of these Terms shall be effective unless made in writing and signed by the waiving Party. The failure of either Party to require the performance of any obligation set forth in accordance with these Terms, or the waiver by either Party of any breach of the Terms, shall not prevent any subsequent enforcement of such obligation or be deemed a waiver of any subsequent breach.
43. Relationship of the Parties. You and the Company are independent contractors, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship whatsoever between the Parties. You will have no authority to make or accept any offers or representations on behalf of the Company. You will not make any statement, whether on any of Your Websites or otherwise, that reasonably would contradict anything in these Terms.
44. Assignability. Neither Party shall, without the prior written consent of the other Party, assign its rights or delegate its duties under these Terms, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may, in the event of a merger, acquisition or sale of substantially all of its business or assets (or any substantially similar transaction), assign the Terms without the consent of the other Party. The provisions of these Terms shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
45. Force Majeure. Neither Party shall be responsible to the other Party for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, changes in governmental regulations, epidemics, pandemics, fire, comprehensive communication line failures or power failures, terrorist activities, shortages of transportation, earthquakes, floods, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing Party, and any time periods required for performance shall be extended accordingly.
46. Third Party Beneficiaries. You acknowledge and agree that Publishers are the intended third party beneficiary of the representations and warranties made to the Company under these Terms.
47. Headings. The headings of the sections contained in these Terms are inserted for convenience and are not intended to be part of or to affect the interpretation of the Terms.
48. Survivability. Sections 10, 16, 18, 19, 20, 22, 23, 26, 36 and 38 shall survive in perpetuity after the termination of these Terms by either Party. Section 33 shall survive for three (3) years from such termination.
49. Electronic Signatures and Representation on Authority of Parties Executing. Each person executing these Terms represents and warrants that they are duly authorized and have legal capacity to execute the Terms on Your behalf. You acknowledge and agree that You accept the Terms via electronic means rather than handwritten signature (Electronic Acceptance). You acknowledge and agree that by creating an account or clicking the button to accept these Terms, You are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that electronic submission by You constitutes Your agreement and intent to be bound by the Terms. Each Party represents and warrants to the other Party that the execution of these Terms and the performance of such Party’s obligations hereunder have been duly authorized and that the Terms are a valid and legal agreement binding upon such Party and enforceable in accordance with its provisions.