TERMS OF SERVICE

THE ADNODE INC. TERMS OF SERVICE

 

ADNODE INC. (THE “COMPANY”) IS WILLING TO PROVIDE ACCESS AND USE OF THE SERVICES (AS DEFINED BELOW) TO YOU (“PARTNER”) AS THE INDIVIDUAL OR CORPORATE ENTITY (DEFINED BELOW) SO LONG AS THE PARTNER ACCEPTS THE TERMS AND CONDITIONS HEREIN. READ THIS CAREFULLY BEFORE ACCESSING AND USING THE SERVICES. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE PARTNER AND THE COMPANY. BY ACCEPTING THE TERMS OF SERVICE (INCLUDING ELECTRONICALLY OR VIA CLICKWRAP) , PARTNER AGREES TO BE BOUND BY THESE TERMS OF SERVICE.

 

IF PARTNER IS ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), PARTNER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THESE TERMS OF SERVICE AND PARTNER ACKNOWLEDGES THAT THE TERM " PARTNER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

 

1. Description of Services: The Company provides a service and platform for marketers and publishers, or their agents, to form, cancel or revise electronic agreements, including insertion orders (“IOs”) to purchase digital advertising (the “Services”). IOs may specify (i) the type(s) and total amount(s) of purchased inventory, (ii) the price(s) for such purchased inventory, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, (v) the viewability, brand safety, ad placement, or targeting requirements for the advertising units, (vi) the official advertising measurement vendors (“Advertising Measurement Vendors”) for the order, and/or (vii) the billing policies and termination rights. By agreeing to terms in IOs with other marketers or publishers, the Partner agrees that the IO terms shall prevail with respect to the transaction between the Partner and such marketers or publishers. If any terms are not specified in the IO, the relevant terms specified in any existing terms and conditions separately agreed upon by the marketer and publisher, or alternatively the Interactive Advertising Bureau Standard Terms and Conditions for Media Buying 3.0, shall apply.

 

2. Right to Use: The Company hereby grants to Partner a non-exclusive, non-transferable, revocable license to access and use the Services solely for Partner’s internal use until such time as the Company revokes such license in its sole discretion. Partner shall not use the Services for any other purpose nor shall you directly or indirectly allow access to and use of the Services by any third party. In connection with its use of the Services, Partner may access the Services via the URL and password(s) to be provided by the Company or created by the Partner. In connection the Services, the Partner may be either a buyer (or agent of a buyer) (a “Marketer”), or a seller (or agent of a seller (a “Publisher”), based on the account type created in the Services’ system (the “System”).

 

3. Restrictions: Partner’s access and use of the Services are subject to the following restrictions. Except as expressly permitted in these Terms of Service, Partner shall not, and shall not permit others to, (a) use, access, copy, or otherwise reproduce the Services in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Services or its right to use the Services; or (d) remove any proprietary notices or labels on the Services. All rights not expressly granted to Partner are reserved by the Company. There are no implied rights. If Partner is accessing and using the Services on behalf of (and for use on behalf of) a Corporate Entity, the Services may only be used solely by its employees and agents (on behalf of Partner). Notwithstanding the foregoing, a Partner which is an agency may share access to the Services with its advertiser clients in connection with the fulfillment of the transactions contemplated under the applicable IOs.

 

4. Reporting: By mutually agreeing upon the Advertising Measurement Vendors within each IO, the Partner agrees the data captured by the Advertising Measurement Vendors shall be the controlling measurement that shall be used for the calculation of all fees payable for the purchased inventory.

 

5. Fees: Marketers do not pay the Company fees for access to the System and use of the Services.

 

For access to the System and use of the Services, Publishers pay Company the fees (the “Service Fees”) which are posted on the Company’s website for the relevant System/Service, as specified in the applicable IO, or as specified in a separate order form.

 

In the event a free trial period applies, zero shall appear under the Service Fees in the applicable IO.

 

All fees are exclusive of, and Partner is responsible for, applicable federal or national, state or provincial, or local sales, use, excise, export or other applicable taxes, except for taxes on the net income of Company. Company may add any such taxes to the applicable Service Fees.

 

6. Payment Method: If Partner is paying the Service Fees by credit card or bank account, Partner hereby authorizes the Company to charge Partner’s credit card or bank account for all Service Fees payable during the applicable subscription term (as specified either on the pricing page on the Company’s website or in the subscription section within the Company’s Online Control Panel) on a monthly basis and in advance. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in these Terms of Service. All subscription fees are due and payable in advance throughout the subscription term. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law.

 

7. Term and Termination: These Terms of Service and use of and access to the Services shall be terminable by either party if the other party, after receiving written notice of a breach of Terms of Service, fails to cure such breach in 30 days. The parties’ rights and obligations under Sections 7, 8, 9, 11, 12, 13, 14, 15, 16 and 17 will survive termination or expiration of this Terms of Service.

 

8. Partner Data: Unless the Company receives Partner’s prior consent, the Company shall not access, process, or otherwise use any data or content stored and loaded by Partner into the System (“Partner Data”) other than as necessary to operate and facilitate the System and to provide Services to Partner and only as permitted by applicable law, these Terms of Service and the Company’s privacy policy.

 

Notwithstanding anything hereto the contrary, the Company may disclose Partner Data as required by proper legal or governmental authority. The Company shall give Partner prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Partner’s expense.

 

9. Ownership of IP, Feedback: Company retains all right, title, and interest in and to the Services and System, including without limitation all software, system software and applications used to provide the System, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the System. This Terms of Service is an agreement for services and does not grant Partner any intellectual property license or rights in or to the System or any of its components. Partner understands and agrees that the System and its components are protected by copyright and other laws.

 

Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Partner provides to Company, and nothing in these Terms of Service or in the parties’ dealings arising out of or related to these Terms of Service will restrict the Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Partner. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of the Company’s products or services.)

 

10. Use of Trademarks, Tradenames: For the purpose of providing the Services, the Company shall have the right to identify Partner and use Partner’s name with potential partners and vendors to demonstrate the existence of a relationship or a potential relationship. Unless otherwise requested by e-mail or in writing, both the Company and Partner shall also have the right during any subscription term to use each other’s logos and names on their respective partner lists and websites.

Partner may use the Company’s “Preferred Partner Badge” in any marketing materials if it has been accepted to the Company’s Preferred Partner program. The right to use the Preferred Partner Badge may be revoked at any time, at the Company’s sole discretion.

 

11. IO Payment Liability: If Partner is an agency representing a Marketer account, Partner represents and warrants that it has the authority as the Marketer’s agent to bind the Marketer to these Terms of Service and each applicable IO, and that all of Partner’s actions related to these Terms of Service and each applicable IO will be within the scope of such agency.

 

If Partner is a Publisher hereunder, unless otherwise set forth in the IO, Partner agrees to hold the agency specified in the applicable IO liable for payments due Partner under such IO solely to the extent proceeds have cleared from the advertiser to the agency for the ads placed in accordance with the IO. For sums not cleared to the agency, Partner agrees to hold the advertiser solely liable. Partner understands that the advertiser is agency’s disclosed principal and agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth herein.

Agency agrees to make every reasonable effort to collect and clear payment from Advertiser.

 

12. Warranties; Disclaimers: Each party warrants that it shall comply with all laws applicable to it including, but not limited to, laws related to data privacy, international communications and transmission of technical or personal data. The Company warrants that during the subscription term the Service shall perform materially in accordance with the documentation provided to Partner by the Company or generally made available by the Company with respect to the Services. In the event of a breach of the foregoing warranty the Company shall correct the non-conforming Service at no additional charge to Partner within 20 days of such breach, and in the event the Company is unable to correct such deficiencies after good-faith efforts, the Company shall refund Partner any pre-paid amounts paid by Partner attributable to the defective Service. Partner shall notify Company in writing within thirty (30) days of such defect. The remedies set forth in this section shall be Partner’s sole remedy and Company’s sole liability for breach of these warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO PARTNER.

 

The Company is not responsible for purchased advertising, enforcing IO agreements between Partner and the other party, a failure to deliver, or a failure of party to pay fees under the IO.

 

13. Indemnification: The Company shall defend Partner from claims, demands, suits, or proceedings made or brought against Partner by a third party (“Claims”) alleging that the use of the Service as contemplated hereunder infringes such third party’s intellectual property rights and shall indemnify and hold Partner harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (“Losses”), provided that Partner: (a) promptly gives written notice of the Claim to Company; (b) gives Company sole control of the defense and settlement of the Claim; and (c) provides to Company, at Company’s cost, all reasonable assistance. Company shall have no liability for Claims or Losses to the extent arising from: (i) modification of the Service by Partner; (ii) use of the Service in a manner inconsistent with these Terms of Service or applicable documentation; or (iii) use of the Service in combination with any other product or service not provided by Company.

 

Partner shall defend Company from Claims arising from the Partner Data or the IO and shall indemnify and hold Partner harmless against any Losses, provided that Company: (a) promptly gives written notice of the Claim to Partner; (b) gives Partner sole control of the defense and settlement of the Claim; and (c) provides to Partner, at Partner’s cost, all reasonable assistance.

 

14. Confidentiality: Each party (a “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) to not disclose any Confidential Information of the other party (a “Discloser”) and shall not use the Confidential Information of the Discloser except as reasonably necessary to perform Recipient’s obligations or exercise Recipient’s rights pursuant to these Terms of Service or with the Discloser's prior written permission. Either party may disclose Confidential Information on a need to know basis to its affiliates, contractors and service providers bound by confidentiality obligations at least as restrictive as those in this section. To the extent required by applicable law, Recipient’s disclosure of Discloser’s Confidential Information shall not be considered a breach of these Terms of Service provided that Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. Discloser shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate. The Services and System shall be deemed Company Confidential Information.

 

15. Limitation of Liability: Except as may arise out of either party’s breach of Section 14 (Confidentiality) or violation by a party of the other party’s intellectual property, neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. Except as may arise out of Company’s breach of Section 1 (Confidentiality) or Company’s indemnification obligations in Section 13, the total liability of Company to Partner for any and all claims and damages under these Terms of Service, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Partner to Company under the Services which form the subject of the claim in the twelve month period preceding the event which gave rise to the claim.

 

16. Force Majeure: Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.

 

17. Miscellaneous: Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld), provided that no consent shall be required for an assignment of this Agreement by either party pursuant to a change of control, a merger or sale of all or substantially all of a party’s assets or all of a party’s outstanding stock.

 

Governing Law. These Terms of Service shall be governed exclusively by laws of the State of New York, without regard to its conflicts of laws rules.  Any claim or action brought by one of the parties hereto in connection with these Terms of Service shall be brought any disputes shall be adjudicated exclusively in the state courts of New York or the Federal District Courts located in the State of New York. Partner consents to the exclusive jurisdiction of the state courts of New York or the Federal District Courts located in the State of New York.

 

Entire Agreement. These Terms of Service and the documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof. These Terms of Service supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms of Service shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms of Service shall remain in effect. Notwithstanding anything to the contrary in these Terms of Service, no terms or conditions in a Partner purchase order or in any other Partner order documentation shall be incorporated into or form any part of these Terms of Service, and all such terms or conditions shall be null and void.

 

 

 

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