ADREADY, A DIVISION OF CPXi
Last Modified: September 2013
1. DESCRIPTION OF SERVICES
1.1The Service is a fee based online solution that designed to make advertising online easier. This Agreement confirms that You have engaged AdReady to provide advertising services. As part of this package, AdReady will provide access via the Site to the following:
- 1.1.1 Personalized ad library
- 1.1.2 Public ad library
- 1.1.3 Campaign dashboards and summaries
- 1.1.4 Various reports to help You manage Your campaigns
1.2The Services also allow You to create customized ads.
- 1.2.1 You can select any customizable ad available through the Site (an “Original Ad”), and then provide Client Content (defined in Section 7 below) through the Site to allow AdReady to produce a customized version of that Original Ad (as customized, a “Customized Ad”).
- 1.2.2 You are not authorized to produce customized versions of Original Ads in any other way, to perform or display any Customized Ad (or to authorize anyone other than AdReady and its sublicensees to do so), or to use any Original Ad or Customized Ad or the content thereof (other than as set forth in Section 1.2.4 below) in any other manner whatsoever unless pre-approved in writing by AdReady.
- 1.2.3 You do not have the right to possess copies of any Original Ad or Customized Ad.
- 1.2.4 This Agreement does not restrict Your use of Client Content separately from Original Ads and Customized Ads.
2. AUTHORITY AND CAPACITY
2.1 By accessing or otherwise using the Site or Services, You represent, warrant and covenant that
- 2.1.2 You shall comply with all applicable laws, rules, and regulations governing Your use of this Site and the Services,
- 2.1.5 You are at least eighteen (18) years old and have the power, authority and capacity to enter into this agreement, and You are a U.S. citizen, or are physically present in the United States as You use the Site and/or Services.
2.2 By using the Site or Services, You signify You meet all of the foregoing criteria, and any action taken by You on the Site or with respect to the Services shall be deemed an action taken by You and the entity or company that You represent.
3. LAWS AND REGULATIONS
3.1 Your access to and use of the Services and the Site is subject to all applicable international, federal, state, and local laws and regulations. We do not make any representation that the information or content available at or through the Services or the Site (collectively, “Site Content”), is appropriate, accurate, or available for use in any particular location. Access to Site Content from territories where the Site Content may be illegal is prohibited. Those who choose to access and/or use the Site and the Services do so at their own risk and are responsible for compliance with all applicable laws and regulations.
5.3 Enforcement:The provisions of Section 5 may be enforced in a court of competent jurisdiction and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered. Notwithstanding the foregoing, neither party shall be prohibited from seeking injunctive or other equitable relief in any court of competent jurisdiction.
6.1 You are responsible for ensuring that Your enrollment information is accurate and complete, and You agree to update enrollment information as necessary to keep it accurate and complete. You shall not misrepresent Your identity, the identity of Your authorized users of the Site or Services, Your authority to act on behalf of Your company, or any other enrollment information or information provided by You subsequent to the enrollment. Failure to provide accurate and complete information may result in the termination of Your ability to use the Site and/or Services and/or result in errors or liability.
6.2 The username and password provided in the enrollment confirmation email will be that assigned to Your account.
6.3 You shall not use a username or password that We deem offensive or inappropriate. You shall provide Us with true, accurate, and updated information. You are solely responsible for maintaining the confidentiality and security of usernames and passwords for Your account, and assume all liability for sharing or disclosing such usernames and passwords. You shall immediately contact Us at 1-888-897-7225 if You become aware that the security of the usernames and/or passwords for Your account may have been compromised or if there has been unauthorized access to Your account or Your data. You are solely responsible for all activity occurring under the usernames and passwords for Your account. Access to and use of password-protected and/or secure areas of the Site and Services is restricted to authorized users only.
7. CLIENT CONTENT
7.1 “Client Content” means any content that You upload or otherwise provide to us in connection with the creation of a Customized Ad or an advertising campaign including, but is not limited to text, logos, images, and Your own completed ads.
7.2 All Client Content remains Your sole and exclusive property.
7.3 AdReady will not place Client Content in the publicly available content library on the Site.
8. LICENSE, USE OF AND RESTRICTIONS OF THE SERVICES AND SITE
8.1 You are hereby granted a limited, non-exclusive license to access and use, during the Term, including incidental copies arising from the operation of Your browser, the Services and Site Content solely as stated in the documentation and tutorials on the Site. You may not resell or sublicense the Service, the Site Content, or any other services provided by us to any other person or entity unless otherwise specifically set forth in the service agreement between You and AdReady. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring, or using any Service or Site Content available on or through the Site for any purposes, except You may make print copies of the Site Content for Your own benefit and internal business use but not for distribution to others unless otherwise specifically set forth in the service agreement between You and AdReady. Your use of the Site is voluntary, non-assignable and non-transferable.
8.2 AdReady needs to have some license rights from You for Your Client Content to be able to perform its obligations under this Agreement and to market its services to others, therefore:
- 8.2.1 You grant AdReady and its licensees a nonexclusive, universal, perpetual, non-terminable, sub-licensable, royalty-free license to use Client Content including, but not limited to, the rights to reproduce, modify, create derivative works (including but not limited to reformat, resize), distribute, publicly perform, synchronize and display, and use any and all Client Content
- 22.214.171.124 to perform its obligations under this Agreement;
- 126.96.36.199 to provide it to media sources that may distribute the Customized Ad throughout their network of participating websites and other distribution outlets;
- 188.8.131.52 to include in AdReady‘s portfolio and other materials intended to market AdReady’s business, directly or indirectly (such marketing reproductions will not be marketed commercially without Your prior written consent).
- 8.2.2 AdReady may sublicense the foregoing rights as expressly permitted by this Agreement and otherwise as necessary for it to perform its obligations under this Agreement.
8.3 AdReady needs to also have some license rights from You for certain of the data AdReady collects that are generated from the campaigns You run through the Services. Therefore, You grant AdReady and its licensees a nonexclusive, universal, perpetual, non-terminable, sub-licensable, royalty-free license to use:
- 8.3.1 IO Details solely in anonymous, aggregated form to improve the Services . “IO Details” are details set forth on an IO expressly associated with You, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information;
- 8.3.2 Site Data solely in anonymous, aggregated form to improve the Services. Site Data is any data that is (A) data that is provided to Us by the sites on which Your Customized Ad is run; (B) gathered during delivery of Your Customized Ad that identifies or allows identification of site on which it is run; or (C) entered by You on such site; and
- 8.3.3 Performance Data solely in anonymous, aggregated form (and not joined with any Site Data or IO Details) to improve the Services, to create performance reports and to promote the Services. “Performance Data” is data regarding Your campaign gathered during delivery of a Customized Ad pursuant to the IO (e.g., number of impressions, interactions, conversions and header information), excluding Site Data or IO Details; and
8.4 Original Ads may contain third party materials that are subject to restrictions by the respective AdReady suppliers, and that accordingly impose additional restrictions on the use of those Original Ads. In addition, as set forth in Section 9.7 below, the media source on which Your Customized Ads are displayed may impose additional restrictions on the content of Your Customized Ads. You shall comply with restrictions and additional restrictions upon notification by AdReady.
8.5 As between You and AdReady, except for Client Content and the data referenced in Sections 8.2 and 8.3 above, all copyright and other intellectual property rights contained in or displayed through any Customized Ad, and other material developed or provided by AdReady under this Agreement, including templates, images, scripts, story lines, sound tracks, tag lines, the “look and feel” of any of the foregoing, and any derivative works of any of the foregoing, are and will remain AdReady’s sole and exclusive property. No intellectual property rights in any Original Ad or Customized Ad are granted to You.
8.6 Each party agrees that the other does not, directly or by implication, by estoppel or otherwise, grant any rights or licenses under this Agreement other than those expressly stated above.
8.7 You may not:
- 8.7.1 use the Site, Site Content or Service in any manner that could damage, disable, overburden, or impair the Site, Site Content or the Service, nor may You use the Site, Site Content or Service in any manner that could interfere with any other party’s use and enjoyment thereof,
- 8.7.2 use any “robot,” “spider” or other automatic device, or a program, algorithm, or methodology having similar processes or functionality, or any manual process to monitor or copy any of the web pages, data, or content found on this Site, Site Content or Service or
9 MEDIA NEGOTIATIONS, PURCHASES & BUDGETS
9.1 You authorize AdReady to act on Your behalf for the purpose of purchasing media and to represent itself to advertising media sources, when appropriate in AdReady’s sole discretion, as Your agent of record for the purpose of purchasing media placements in conjunction with the Programs & Services.
9.2 AdReady will act as a principal in purchasing and reselling media placements to You. Upon receiving Your service agreement to purchase media, AdReady will attempt to acquire media that is closest to the requested details in the campaign. AdReady does not guarantee that media corresponding to any or all of the campaign specifications will be available. Your obligation to pay for any and all media purchased on Your behalf will apply whether or not the media meet any or all of Your requested campaign specifications.
9.3 Budgets provided or requested within the campaign creation process are only approximations. Your actual purchased media costs may be lower or higher than campaign budgets on a daily or monthly basis due to normal traffic fluctuations. Over the course of a campaign that runs at least 30 days, these fluctuations are normalized. Therefore, for campaigns that run 30 days or more, actual costs for each billing cycle will not exceed the billing cycle budget by more than 10%.
9.4 AdReady will use commercially reasonable efforts to contractually require media sources, suppliers and others to fulfill their commitments as they relate to the Programs & Services to be provided to You, but AdReady will not be liable to You for the failure of any media sources, suppliers or other third parties to do so or any destruction, loss or unauthorized use of Client Content by such media sources, suppliers and others.
9.5 Purchase of media relating to this Agreement will be subject to the media source‘s terms under which the media is purchased, and to the media source’s other applicable policies, which may include:
- 9.5.1 the right of the media source to reject, pre-empt, change, or substitute media placements;
- 9.5.2 deadlines for submission of material;
- 9.5.3 cancellations;
- 9.5.4 compliance with the media source’s policies regarding approval of advertising content;
- 9.5.5 alternative performance (for instance, through make-goods), refunds, and other remedies;
- 9.5.6 limitations and exclusions of Your remedies; and
- 9.5.7 indemnification for liabilities arising out of publication or distribution of Customized Ads and Client Content.
9.6 You acknowledge that AdReady cannot guarantee or represent that any given media source will accept and shall run any given Customized Ad or Client Content.
9.7 You may find the Complete URL addresses for the policies for AdReady’s media sources in Appendix A. The media sources may have privacy practices that may differ from those of AdReady, and We cannot be responsible for the privacy practices of the media sources. By accessing or otherwise using the Site or Services, You represent, warrant and covenant that You shall comply with the policies for AdReady’s media sources and that you have reviewed and accept their privacy policies. AdReady’s media sources and policies may change without notice, so You need to check the applicable media source’s policies before You order any Programs & Services that will involve that media source. Refunds and cancellations of Your orders will be subject to the media source‘s terms and policies (as may be modified from time to time by the media source) as well as the cancellation provision in Section 15 below.
10. ADDITIONAL SERVICES
10.1 You may ask AdReady to provide additional services not outlined within this Agreement, including additional future analyses or updates services. The scope of those services and the fees to be charged will be established in a separate agreement between AdReady and You. Neither AdReady nor You will be bound by any such agreement until both AdReady and You have signed it.
11.1 You shall cooperate with AdReady and provide information reasonably required by AdReady in connection with the performance of the Programs & Services. You shall furnish AdReady with all information concerning You and Your business that AdReady and You reasonably deem appropriate. All of the materials supplied to AdReady shall have been prepared, reviewed and approved by You or Your consultants, agents or representatives, and will be, to Your best knowledge, accurate and complete in all material respects. In addition, You shall provide AdReady with reasonable access to Your management team and employees, consultants and other appropriate agents and representatives as AdReady and You reasonably deem necessary in connection with the performance of the Programs & Services. AdReady shall rely upon the completeness and accuracy of information and data furnished to it by Your officers, directors, employees, agents and representatives without any independent verification of such information and data.
12. REPRESENTATIONS AND WARRANTIES
12.1 You represent and warrant that:
- 12.1.1 You have obtained any and all necessary clearances, releases, approvals, and consents from third parties (including with respect to any third party’s copyright, patent, trademark, trade secret or other proprietary rights, rights of publicity or privacy, and moral rights) and made any and all required payments to third parties (including, but not limited to, artists, unions, guilds and performing rights societies) in connection with all Client Content, as necessary to grant the rights to AdReady specified in this Agreement and for AdReady to perform its obligations under this Agreement.
- 12.1.2 AdReady and media sources of Customized Ads will not be required to make any payments whatsoever to You or any third party with respect to Client Content; such payments shall remain the sole responsibility of You.
- 12.1.3 No Client Content contains any virus, worm or other malicious code, Trojan-horse routine, trap door, time bomb, or any other code or instruction that is or is intended to be used to access, modify, delete, damage, or disable the functionality of AdReady’s, any media source’s, or any user’s computer systems or data.
- 12.1.4 No Client Content will include any material that is fraudulent, deceptive, threatening, abusive, harassing, defamatory, invades privacy, infringes on any intellectual property rights, obscene, profane, racially or ethnically objectionable, or in violation of applicable law.
- 12.1.5 The Customized Ad(s), Client Content, and other advertising used by You to advertise Your business are the accurate, not deceptive, factually complete, and You can substantiate the statements made therein.
- 12.1.6 You comply with any information, disclosures or requirements that are imposed upon You as a result of Your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding.
- 12.1.7 You shall review and approve all materials prepared by AdReady and all Client Content to confirm that descriptions and representations direct or implied, with respect to Your business, products, services, industry, and competitors, are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines.
13. ACCOUNT MONITORING
14. PAYMENT & EXPENSES
14.1 In consideration for providing the Services, You shall pay to AdReady all applicable fees billed to You in accordance with the pricing information and/or monthly fees applicable to Your User Account and set forth for You at the AdReady Sign up Page.
14.2 You will pay AdReady for all Programs & Services ordered, including fees as specified in each IO and any fees for media. Charges presented to You for media may include charges for Programs & Services.
14.3 You are required to provide a valid credit card together with approved credit authorization and payment terms as a condition to signing up for the Services.
14.4 You shall provide complete and accurate billing and contact information and to keep such information updated. You expressly authorize the use of Your account data to charge Your credit card for the Fees as may be accrued through Your use of the Services. You shall immediately notify Us if Your credit card is lost or stolen or Your credit card account otherwise becomes unavailable for any reason.
14.5 Your payments to AdReady will be made by credit card, or other means approved by AdReady. When You submit Your campaign or enter a new credit card, AdReady may authorize Your credit card for an amount of the budget You entered for Your campaign(s), up to the total amount of the billing cycle budget You provide for each of Your campaign(s). The authorization is a check for available balance, it is not a charge. Credit cards may be re-authorized based upon Your campaign or account activity. If You fail to make payment, You will pay an interest rate up to the highest rate permitted by law.
14.6 You shall reimburse AdReady, or at AdReady’s request to reimburse a third party, promptly as billed, for all out-of-pocket expenses incurred by AdReady, and agreed to by You prior to being incurred by AdReady, in connection with Programs & Services provided hereunder. At its discretion, AdReady may charge Your credit card to obtain this reimbursement as described in the “Payment” section above.
14.7 Our Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, 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 Our net income.
14.9 We reserve the right to modify the Fees and to introduce new charges at any time, upon at least 30 days prior notice to You, which notice may be provided by e-mail or via Your User Account or other notice of modification to the pricing information and/or monthly fees applicable to You.
15.1 Media or advertising space obtained for Your benefit may be cancelled per the individual media contracts in place.
15.2 You may elect to pause or stop campaigns from running, and resume campaigns at a later time, without cancelling this Agreement. Unless otherwise set forth in the service agreement with AdReady, either party may elect to cancel this Agreement at any time. Upon cancellation of this Agreement, AdReady will be entitled to payment for all fees and costs incurred in connection with Your advertising campaigns in addition to any other fees and termination penalties that are set forth in the service agreement with AdReady.
15.3 If You choose to cancel this Agreement, You must give AdReady written notice at [email protected] Once received, Your cancellation will not be effective until it has been processed, which may take several days. You are responsible for all fees and costs incurred in connection with Your advertising campaigns while Your request is being processed.
16. THIRD PARTY DATA
16.1 In order to provide the Programs & Services, AdReady may need to obtain and use information from one or more third parties (“Third Party Data”). AdReady will use commercially reasonable efforts to determine and verify the accuracy and completeness of Third Party Data but cannot guarantee the accuracy or completeness of Third Party Data nor of any AdReady reports or recommendations based on such data. Accordingly, AdReady will not in any way be liable for Third Party Data provided or used under this Agreement that, despite AdReady’s commercially reasonable efforts, contains inaccuracies, errors, and omissions. However, in the event that You discover any inaccuracies, errors or omissions in any Third Party Data contained in the AdReady reports, You will notify AdReady in writing of such errors within ten (10) business days, and AdReady will have ten (10) business days thereafter to use its commercially reasonable efforts to remedy any such inaccuracies, errors or omissions. Furthermore, AdReady and You are entering into this Agreement solely for AdReady’s and Your respective benefit, and no other person will acquire or have any right under or by virtue of this Agreement. AdReady will not be liable for breaches or defaults arising by reason of a third party terminating any agreements with You.
17. THIRD PARTY SOFTWARE
17.1 You shall utilize software produced by third parties, including but not limited to, “browser” software, that supports a data security protocol compatible with the protocol used by Us. Until notified otherwise by Us, You shall use software that supports the Secure Socket Layer protocol or other protocols accepted by Us and to follow the logon procedures for that service. The Services are designed to allow You to transact modifications of advertising campaigns through other third party systems, and Your access to the Services requires that Your software will satisfy the security requirements of each such third party system. We are not responsible for notifying You of any upgrades, fixes, enhancements or other modifications to any such third party software, or for any compromise of data transmitted across computer networks not owned or operated in whole by Us.
18.1 You grant Us and Our licensors, licensees and successors a non-exclusive, perpetual, royalty free, fully paid up, worldwide, limited right to use Your name, trademarks, service marks and logos in the production of marketing materials promoting the Service. All goodwill from the use of Your trademarks shall inure to Your benefit.
19. TERM AND CANCELLATION
19.3 Except as otherwise set forth in the Service Agreement between You and AdReady, You may cancel or terminate Your account and use of the Services at any time, in which case, You must cease using the Services. Cancellation or termination of Your enrollment or account must be made in writing and sent to AdReady by sending an email to [email protected]
19.4 Monthly service fees and the cost of media You purchased through the Services are non-refundable.
20. PROPERTY RIGHTS
20.1 AdReady, Our licensors, or third parties, as applicable, own all rights, title, and interest in and to Services and the Site, and portions thereof, including, but not limited to, all Intellectual Property Rights, and the trademarks, logos, and service marks (“Marks”) displayed on the Site or through the Services are the property of AdReady, Our licensors, or third parties, as applicable.
20.2 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions, and restorations thereof, now or hereafter in force and effect worldwide.
20.4 You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags or on other pages or sites on the World Wide Web without Our written permission or the written permission of such third party that may own the Marks. You shall not remove, obscure, or alter the copyright notice, trademarks, or other proprietary rights notices belonging to AdReady, and/or other third parties affixed to or contained within or accessed in conjunction with or through this Site.
20.5 Your use of the Services, Content or Site is not an endorsement of You or Your business by AdReady, and You shall not utilize the Marks of AdReady or other third parties to suggest any endorsement or affiliation to them. You remain owner of all rights, title, and interest in and to the Intellectual Property Rights in Your logos or materials that You upload in connection with the Services. If You upload any logo or material You thereby grant AdReady a limited license to use such logo and/or material in conjunction with Your use of the Services, such as on Your invoices or web page displays generated by the Services, and to identify You as a user of the Services.
20.6 You hereby grant AdReady a royalty-free, fully-paid, worldwide, exclusive, transferable, assignable, sublicenseable, irrevocable and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Site or Services.
21. DISCLAIMER OF WARRANTIES
21.1 THE PROGRAMS & SERVICES PROVIDED BY ADREADY UNDER THIS AGREEMENT (INCLUDING ORIGINAL ADS AND THEIR CONTENT, AND THIRD PARTY DATA AND OTHER INFORMATION PROVIDED BY ADREADY) ARE PROVIDED “AS IS”, AND ADREADY DISCLAIMS ALL WARRANTIES AND DUTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES AND DUTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, WORKMANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, ACCURACY OR COMPLETENESS, QUIET ENJOYMENT. THERE IS NO WARRANTY OF TITLE OR NON- INFRINGEMENT.
21.2 YOUR USE OF THE SITE AND SERVICES IS AT YOUR OWN RISK. THE SITE AND SERVICES AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THIS SITE OR VIA THE SERVICES ARE PROVIDED TO YOU BY US “AS IS” ON AN “AS AVAILABLE BASIS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. TO THE FULLEST EXTENT PERMITTED BY LAW, ADREADY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SITE AND SERVICES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ADREADY MAKES NO WARRANTY THAT (i)THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
21.3 ADREADY DOES NOT ENDORSE NOR IS RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY FORECASTS, SUGGESTIONS, RECOMMENDATIONS, EXTRAPOLATIONS OR SUMMARIES GENERATED THROUGH THE SERVICES, (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE THROUGH THE SERVICES OR THE SITE BY ANY PARTY, (C) ANY CONTENT PROVIDED ON ANY THIRD PARTY SITE(S) LINKED TO THIS SITE, OR (D) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM ANY THIRD PARTY SITE(S) LINKED TO THIS SITE.
21.4 OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL ADREADY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES OR THE SITE, OR YOUR RELIANCE ON ANY PRODUCTS OR SERVICES OBTAINED FROM A LINKED SITE. IT IS YOUR SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A THIRD PARTY SITE LINKED TO THE SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.
22. LIMITATION OF LIABILITY
22.1 THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES, SITE, CONTENT, AND DESCRIPTIONS OF SERVICES PUBLISHED ON THE SITE OR A LINKED SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND ADREADY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. ADREADY DOES NOT WARRANT OR REPRESENT THAT THE CONTENT ON THE SITE IS COMPLETE OR UP-TO-DATE. ADREADY IS UNDER NO OBLIGATION TO UPDATE THIS SITE, SERVICES OR CONTENT. ADREADY MAY CHANGE THE SITE, SERVICES OR CONTENT OR MAY MAKE IMPROVEMENTS OR CHANGES THERETO AT ANY TIME WITHOUT NOTICE.
22.2 EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, ADREADY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, OR AGENTS WILL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, FOR ANY PUNITIVE, RELIANCE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, SERVICES, CONTENT OR A LINKED SITE, OR WITH THE DELAY OR INABILITY TO USE THE SITE OR A LINKED SITE, EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY RELATES TO, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT A USER’S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. ADREADY CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SITE, SERVICES OR CONTENT.
22.3 EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF ADREADY AND OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), WILL BE THE GREATER OF (i) TWENTY DOLLARS ($20) AND (ii) THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEES PAID PURSUANT TO SECTION 11 HEREOF IN THE TWO (2) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO THE CLAIM, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23.1 You shall defend, indemnify and hold harmless AdReady and its officers, directors, shareholders, employees and licensors, agents (collectively, the “Indemnitees”) from and against any and all losses, damages, liabilities, claims, and expenses (including attorneys’ fees and expenses) which any Indemnitees incur as a result of any investigation, demand, claim, defense or action of any third party against such Indemnitees: (a) arising out of or relating to (i) the use of the Site or Services, Client Content and/or (ii) the use or publication of a Customized Ad as contemplated by this Agreement, including, but not limited to, claims of infringement or misappropriation, defamation, invasion of privacy, trespass, and/or the violation of any right of any third party (for both (i) and (ii) above); or (b) that, if proven, would establish that (i) Your products or services are defective, injurious, or harmful (including any claim for bodily injury or death), or (ii) the manufacture, sale, distribution or use of any of Your products or services violates the rights of any third parties or that the advertising, publicity or promotion of Your products or services violates the rights of any third parties. Your obligation to indemnify and hold AdReady harmless under (a) above does not apply to the extent that the alleged infringement or misappropriation arises solely out of any Original Ad.
23.2 Each party (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other party and its directors, officers, agents, licensors and employees (collectively the “Indemnified Persons”), from and against any losses, damages, liabilities, claims, and expenses (including attorneys’ fees and expenses) which such Indemnified Person incurs as a result of any investigation, demand, claim or action of any third party against such Indemnified Person, which, if proven, would establish: (a) the breach of any representation or warranty made by the Indemnifying Party hereunder; (b) the breach of any obligation, covenant or agreement of the Indemnifying Party hereunder.
23.3 Each party seeking indemnification under the preceding two paragraphs will (a) provide prompt written notice to the indemnifying party of the applicable investigation, claim, etc.; (b) allow that indemnifying party to control the defense and settlement of the claim; and (c) provide reasonable cooperation to that indemnifying party, at that indemnifying party’s request and expense, in defending or settling the claim. With respect to each such claim, each party’s obligation to indemnify and hold the other harmless under the preceding two paragraphs will not apply to the extent that the other party is obligated to indemnity that party under either of those paragraphs with respect to the same claim.
24. VIOLATIONS OF SERVICE TERMS & TERMINATION
25. JURISDICTION AND GOVERNING LAW
25.1 Users of the Site and Services submit to the laws of the State of Washington, USA and applicable federal law without regard to conflicts of laws principles. If not in arbitration, You shall submit to the exclusive jurisdiction of the federal and state courts of the State of Washington.
27. FORCE MAJEURE
27.1 AdReady shall not be responsible for delays, nonperformance, damages, lost profits, or other losses caused directly or indirectly by any Act of God, including without limitation, fires, earthquakes, tornadoes, or hurricanes, as well as wars, labor disputes, communication failures, legal constraints, power outages, data transmission loss, data loss, failure or interception, incorrect data transmission, or any other event outside the direct control of AdReady.
28. GENERAL, ENTIRE AGREEMENT, SEVERABILITY AND WAIVER
28.4 All waivers by AdReady must be in writing signed by an authorized representative of AdReady.
28.6 The parties are independent contractors under this Agreement, and nothing in this Agreement creates a partnership, joint venture, franchise, employment, or agency or fiduciary relationship between AdReady and You. Neither party has any authority to make any statement, representation or commitment of any kind or to take any action binding upon the other party, without the other party’s prior written authorization, except as expressly stated in this Agreement.
- 28.7.1 Arbitration; License, Use of and Restrictions of the Services and Site; Representations and Warranties; Payment and Expenses; Cancellation; Third Party Data; Property Rights; Disclaimer of Warranties; Limitations of Liability; Indemnification; Jurisdiction and Governing Law; and General, Entire Agreement, Severability and Waiver.
28.8 We reserve the right to modify or discontinue the Site or any of the Services with or without notice to You. We shall not be liable to You or to any third party in the event that We exercise the right to modify or discontinue the Site or any of the Services.
28.11 Unless otherwise expressly stated herein, when used in this Agreement, the words “include,” “includes,” and “including” will be deemed in each case to be followed by the words “without limitation.”
Appendix A – URL Addresses
Below is a list of media source policies referenced herein with complete URL addresses.
|Media Sources||Policy – URL|
|DoubleClick Ad Exchange||http://www.appnexus.com/platform-policy|
|Microsoft Ad Exchange||http://www.appnexus.com/platform-policy|