Terms of Service
Well Planned Advertiser, LLC and its affiliates, perform the following “Services” to help clients increase website traffic: (i) enable clients to use on their websites, programmatic advertising, which is a type of digital advertising that uses a demand-side platform (“DSP”) and data management platform (“DMP”) that interface with one or more third-party operated social media platforms, ad networks, ad servers, or other ad exchanges or trading platforms, and (ii) track and report the behavior of the visitors to the clients’ websites and their website performance. “Services” are provided subject to the following:
PLEASE READ THESE TERMS AND CONDITIONS OF USE (THESE “TERMS”) CAREFULLY. BY VISITING THIS WEBSITE, INCLUDING ANY PAGE UNDER OUR WELL PLANNED ADVERTISER DOMAINS, OR USING OR ACCESSING ANY OF OUR CONTENT OR TECHNOLOGY OR SERVICES OFFERED THROUGH THIS WEBSITE OR OTHERWISE, WHETHER OR NOT YOU OPEN A USER ACCOUNT, HAVE AN ACTIVE SUBSCRIPTION FOR OUR SERVICES, OR REQUEST SERVICES FROM US, YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THESE TERMS AND OUR PRIVACY POLICY (LINKED BELOW).
IF YOU DO NOT AGREE TO BE BOUND TO THESE TERMS OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY LEAVE THE WEBSITE, NOT RETURN, AND NOT ENGAGE IN ANY ACCESS OR USE OF ANY SERVICES FROM WELL PLANNED ADVERTISER, LLC, OR ANY OF OUR AFFILIATES.
2. Acceptance
These Terms form a legally binding agreement between you (“Client” or “you”) and Well Planned Advertiser, LLC or its affiliates (“Provider”, “we” or “us”) governing your access or use of our website or Services. Client and Provider are also each referred to herein as a “Party” and collectively as the “Parties.” Any definitions include grammatical variants of the defined word or phrase.
If you are or intend on accessing or using this website or any of our content or Services on behalf of a legal entity (“Company”) that employs you or that you represent, or if anyone at Company asks you to do so on their behalf, then “you” in these Terms refers not only to you individually, but it also refers to and includes the Company, including all its employees, directors, officers, representatives, agents, contractors, or other third parties engaged by Company that will access or use the Website or our Services for the Company in any manner, and all such individuals are included in references to “Company” and “you” in these Terms and bound thereby. Anytime you access or use any content on our Website or request or order or use our Services, on behalf of a Company or at the Company’s request, your access or use constitutes your personal representation and warranty that you are duly authorized to bind Company to these Terms and the Privacy Policy. If you know or suspect or should have reason to believe that you are not so authorized, you will immediately leave the Website and disengage from all further access or use of content or our Services, whether for Company’s internal use or otherwise, none of which is licensed hereunder. In such a case, any licenses or other rights to use or access or offers related thereto, are withdrawn, canceled, and terminated, until and unless you submit to us a copy of a signed contemporaneously dated document or communication from a natural person who is authorized to bind the Company, identifying the natural person by name, contact information, and title or position at the Company, enclosing a copy of these Terms, to evidence the natural person acting, as duly authorized, to bind the Company to these Terms.
By accessing, browsing and/or otherwise using the website, or our content or services, you represent and warrant that: (i) you are at least 18 years of age; or (ii) as parent or guardian, you agree to these Terms and the Privacy Policy (linked below) and authorize your child who is between the age of 16 and 18 to visit, access, or use the Website, content or Services, subject to your responsibility for their conduct.
You consent to our use of encryption, security, digital rights management, and authentication mechanisms in, or implemented with content, technology, and Services to audit and track your access and use and to confirm your compliance with these Terms.
You confirm and acknowledge that to the extent you have or exercise a right to terminate or cancel your agreement with us in accordance with these Terms, nothing prevents us from pursuing any other available remedies for any breach or threatened breach by you or Company hereof, including, but not limited to, remedies available under these Terms and recovery of damages, all of which are hereby reserved by us.
3. CONTENT
Provider hereby grants to you, as an account holder with Provider, or visitor to Provider’s website or postings on social media platforms, the non-exclusive non-transferable license in intellectual property rights (such as patent, copyright, trademark, know-how and other intellectual property) to use the content posted or made available or accessible thereon or therethrough, for the “Limited Purpose” of your own internal personal use or internal business use. You are prohibited from publishing, posting, or re-posting or forwarding any such content or information or material thereon, except as consented to in writing or enabled by Provider in its sole discretion.
4. SERVICES
4.1 Offerings
Provider is not obligated to accept any subscription request or other order or request for Services from a Client. However, once accepted by Provider, as indicated on the account or other correspondence, Provider will provide a copy of our “Instructions,” which are instructions, including proprietary HTML coding specifications to such Client to be used only for the “Limited Purpose” of incorporating or implementing the coding into their “Website” (defined below) to enable the provision of Services from Provider, and use the “Visit Data” (defined below) obtained through our “Analytics API” and “Analytics Dashboard” (defined below) for your own internal personal use or internal business evaluation and analysis. You are prohibited from requesting, accessing, sharing, posting or publishing, or using any of the Visit Data, or other information or content in the Instructions or obtained through the Analytics API or Analytics Dashboard to integrate or work with any other platform or service from any other provider, or to otherwise request, access, share, publish, or use them for any use or purpose beyond the above-defined Limited Purpose, or outside the scope of the license set forth in Section 4.2.
4.2License
If and while you are accepted by Provider as a subscriber to or registered Client for Services, current with payment obligations related thereto, and compliant with these Terms, Provider hereby grants to you, as such a Client, a non-exclusive non-transferable license in “Intellectual Property” in the Instructions and to use the Analytics API, Analytics Dashboard, and Visit Data only for the Limited Purpose set forth in Section 4.1, and such license will not extend to or include any other rights without the prior written consent from Provider in its sole discretion. You confirm that you hereby assign to Provider all your rights in any feedback or suggestions from you or modifications by you related to the foregoing, such as requests to modify or customize the Analytics Dashboard or introduce other means to process Visit Data, and if such assignment is not allowable under applicable law, then you hereby irrevocably license, with sublicensing rights, such rights to Provider to make, use, sell, offer for sale, or import any products or services.
4.3 Tracking Pixels
The HTML coding in the Instructions refers to coding to enable “Tracking Pixels” on a Client’s website (with the pages associated with Client’s domain address, referred to individually and collectively herein as “Website”). Tracking Pixels are designed to track the visits by customers or other visitors (all “Visitors”) to the Website and activity during their visits, via their device IP addresses or other identifiers assigned to their devices, so that Visitors can be later targeted or re-targeted with ad campaigns related to the same. Tracking Pixels track: (i) a Visitor’s visit to the Website; (ii) a Visitor’s engagement with a Website, which refers to when a Visitor clicks a link, broses, shops or adds items to a cart on the Website; and (iii) conversion via the Website, which refers to when a Visitor enters their email, downloads from the Website or from a link on the Website, or completes shopping, makes an appointment, or completes another transaction on the Website or from a link on the Website.
4.3 Analytical API
The “Analytics API” is an application programmatic interface to be used by the Client with the Website to enable passively collectable data from a Visitor to the Website, referred to as the Visitor’s “Visit Data” (defined below), to be automatically collected and fed to the Provider’s system and network during the Visitor’s engagement or visit to the Website, so that Provider can provide programmatic ad processing and reporting services described below.
4.3 Analytics Dashboard
“Analytics Dashboard” is a software addition that customizes Client’s other programs, apps, or web browsers, with the capability of pulling up or presenting a visual dashboard or other interface that reports on aspects of visitor behavior and Website performance, in an aggregated and anonymized fashion, from the real time processing in Provider’s system or network of Visit Data pulled and transmitted via the Analytics API that is implemented and operated by Client.
4.3 Visit Data excludes Actively Collected Data
For the avoidance of doubt, the Instructions, Tracking Pixels, Analytics API, and Analytics Dashboard are designed and are licensed only to pull, process, analyze, present, and transmit to and from the Provider’s system only the “Visit Data” without any “Actively Collected Data” about the Visitor.
(a) Visit Data
“Visit Data” refers to the Visitor’s IP address and other Website visit related data that is passively collectable during or as a result of the Visitor’s engagement with the Website, via the Tracking Pixels, and that is automatically fed to Provider’s system, and processed through the Analytics API or presented on or via the Analytics Dashboard, about different aspects of the Visitor’s behavior while at the Website to effectively target or direct or retarget programming advertisement of the Website to the Visitor after leaving the Website, or to other persons who are geolocated in a similar area or have a similar interest as the Visitor. Examples of passively collected Visit Data are a Visitor’s active time at the Website, bounce rates, identifying if the Visitor is a first or return Visitor, geolocating the IP Address, the Visitor’s click path or stream that directed them to the Website (such as the Client’s content on other websites, or searches that led them to the Website), visit frequency, page tagging, log analysis, and the like.
(a) Actively Collected Data
“Actively Collected Data” refers to user-specific data, whether stored in a cookie on the Visitor’s device or deleted after the Website visit, and whether manually inputted by Visitor or otherwise actively collected with a Visitor’s consent. User-specific data identifies the natural person or household who is the Visitor, compared to the passively collectable data that identifies the device that the Visitor is using and the activities (clicks and other observations) of the visit through the device. Examples of user-specific data are the Visitor’s name and contact information, username, password or other account information, financial account numbers, or government-issued identifiers, and other personally identifiable information (“PII”) or “Sensitive Information” that identify the natural person or household who is the Visitor. “Sensitive Information” means (i) any information revealing race or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership; (ii) genetic data; (iii) biometric data for the purposes of uniquely identifying a natural person; (iv) data concerning health; (v) data concerning a natural person’s sex life or sexual orientation; (vi) any personal data regarding a minor under the age of 13 (or under the age of 16 with respect to EEA Data); (vii) any financial account numbers or insurance plan numbers that can be used to identify an natural person; (viii) any government-issued identifiers; or (ix) characteristics deemed sensitive under the Network Advertising Initiative’s Code of Conduct, located at: https://www.networkadvertising.org/sites/default/files/nai_code2018.pdf (or any successor website). “EEA Data” means data originating in the European Economic Area and the United Kingdom. You confirm and acknowledge that you are prohibited to, and you will not enable anyone else, to engage in any use of any of the foregoing with Actively Collected Data, or to correlate or identify any Visit Data with Actively Collected Data.
5. INTELLECTUAL PROPERTY
5.1 Limited Rights
You acknowledge and confirm that, as between you and the Provider, Provider owns and retains all exclusive rights, title, and interest in the Intellectual Property in, to and under all “Provider Goods and Services,” that you disclaim any licenses or rights to you beyond those expressly granted or permitted in these Terms, and that no such other licenses or rights are granted to you or permitted by Provider.
5.2 Provider Goods and Services
“Provider Goods and Services” means the Instructions, Analytics API, Analytics Dashboard, Visit Data for your Website, the Provider’s website, and Provider’s other content and technology published or offered on or through the Provider’s website or as published or posted by Provider on other social media platforms. You will hold Provider harmless and indemnify Provider to defend against and cover any claim, costs, expenses, or liability related to activity or omission that is done or attributable to you, and that is prohibited or outside the scope of what is licensed and permitted under these Terms, or that is due to a breach by you of these Terms or otherwise attributable to your use of the Provider Goods and Services.
5.2 Intellectual Property
“Intellectual Property” means any and all (i) copyrights, moral rights, and other rights associated with software programs or coding, or other works of authorship, (ii) trade secrets and other “Confidential Information” (defined below), (iii) patents, patent disclosures and all rights in inventions (whether patentable or not), (iv) trademarks, trade names, Internet domain names, and registrations and applications for the registration thereof together with all of the goodwill associated therewith, (v) all other intellectual and industrial property rights of every kind and nature throughout the world and however designated, whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in effect.
6. CLIENT REQUIREMENTS
6.1 Client Obligations
Client will, at all times (i) enter and otherwise provide to Provider accurate and complete information requested by Provider; (ii) secure, and upon Company’s request, provide documentation of, all necessary authorization from applicable third parties (including advertisers, web publishers and others) to display the Website, and distribute advertising content based on the Website and Client provided information, and to tag the advertising content on various web pages and media platforms; (iii) ensure that third party ad tags utilized by Client work reliably; (iv) ensure that the use by Client and Website Visitors of the Provider Goods and Services, advertising content, Website, and tags do not violate applicable law (including, but not limited to, all laws applicable to consumer protection, consumer credit, privacy, and intellectual property), and do not cause damage or injury to Provider or Provider’s network or system; and (v) pay all Fees when due. Client agrees that it is solely responsible for the use of the Provider Goods and Services (including the incurrence of costs and fees) by its employees, agents, subcontractors, and any other users that gain access thereto via Client’s login credentials, and that Client will ensure such users comply with the terms of these Terms and Client shall be liable for any breach of these Terms by any of the foregoing.
6.2 Provider Goods and Services Restrictions
Client is not licensed any Provider Goods and Services to do or attempt to do, and Client will not, and Client will not permit any employee, officer, director, affiliate, or contractor or other third party for to do or attempt to do any of the following: (a) use the Provider Goods and Services for any website or pages beyond the Website(s) identified by Client as part of its subscription or account or order for Services; (b) copy, modify, adapt, alter, translate, display or use the Provider Goods and Services in any manner except as licensed in Section 4; (c) sublicense, lease, loan, distribute, resell, or provide, or otherwise transfer or grant access to anyone of any of the Provider Goods and Services; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine source code from an executable file, extract data out, or determine the underlying ideas, algorithms, structure or organization of any of Provider Goods and Services; (e) obliterate, alter, or remove any proprietary or intellectual property notices on any of Provider Goods and Services in physical or electronic form; (f) use Provider Goods and Services to interfere with, gain unauthorized access to, or otherwise violate the security of Provider’s system or network or data, or to attempt to do any of the foregoing; (g) use Provider Goods and Services to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others, or otherwise violate any applicable law, statute, ordinance or regulation; or (h) use Provider Goods and Services to transmit, publish, or distribute any material or information (1) that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or other code, files, or programs designed to disrupt or interfere with the functioning of Provider Goods and Services, (2) for which Customer does not have all necessary rights and licenses, including any material or information that infringes, violates, or misappropriates any third party intellectual property rights, or (3) that is or that may reasonably be perceived as being harmful, threatening, offensive, obscene, or otherwise objectionable.
6.3 Client General Restrictions
Client will not publish, distribute, post, or stream any content or other information on the Website or other websites or media platforms that includes or promotes pornography, violence, racism, discrimination on the basis of race, color, religion, sex, sexual orientation, or national origin, or that promotes illegal drugs or illegal use of controlled substances, illegal weapons, or that promotes adware, malware, bit torrent, illegal file sharing, pyramid schemes, chain letters, or junk email, or other content that Provider or Client considers in good faith to be offensive or otherwise inappropriate. If Client fails to remove any such content or information within thirty (30) days of a notice from Provider, Provider may hold Client in material breach of these Terms and terminate for cause effective immediately with Provider’s written notice of termination to the Client.
6.4 Data
(a) Analytics API and Analytics Dashboard
Client is prohibited from configuring the Website or altering the programming in the Analytics API or Analytics Dashboard or the Tracking Pixels or add other coding that transmits, enables or allows the transmission of, or attempts to transmit any PII or other Actively Collected Data to Provider’s system or network.
(b) Visit Data
(i) Opt Out
To the extent technically feasible for one skilled in the art, Client will take further measures to exclude from the Visit Data, any data or information that is collectable from any Visitor that has opted out of receiving any targeted advertising. Client is solely responsible for implementation, and any and all liability incurred by Provider or its third-party partners or affiliates in with Client’s failure to comply with a Visitor’s selection and the applicable privacy.
(ii) No Reverse Processing
With the exception of unique identifier which is created, assigned or retained by Provider identifying a Visitor’s device and collecting Visit Data during or as a result of their visit to the Website, Client will not merge any data or reports from the Provider or the third-party DSP or ad exchange or trading platform provider about the Visitor with any PII or Sensitive Information otherwise re-identifying, or attempting to re-identify, a natural person for targeted advertising without obtaining specific opt in consent from such natural person.
(iIi) Provider Website Terms of Use and Privacy Policy
Client confirms that Client may not use the Provider Goods and Services in any manner that does not fully comply these Terms or the Provider’s Privacy Policy, as either may be updated by Provider in its discretion from time to time.
6.5 Developer Website Terms of Use and Privacy Policy
Client confirms that Client may not use the Developer Goods and Services in any manner that does not fully comply the terms of use concerning Developer’s website and Developer’s privacy policy(ies), which can be provided by link upon request, as the same may be updated by Developer in its discretion from time to time, and all of which are incorporated into these Terms by reference herein to the extent that the terms and policy(ies) do not conflict with any of the express terms in the body of these Terms or any SOW.
7. PAYMENT
7.1 Fees
Provider will specify in the account order or cart, or other invoice, the fees to be paid by Client to Provider (“Fees”), which may be associated with a subscription plan or package, or as otherwise specified by Provider. Fees may be increased annually.
7.2 Invoices
Unless otherwise stated in an invoice or other communication, Client shall pay all Fees when accrued and due, and if by invoice statement, no later than ten (10) days after the date of invoice. Fees will be paid in the manner specified for the account or in the invoice.
7.3 Interest
Provider may charge interest on any Fee payment that is past due, in which case the amounts due will accrue and accumulate interest at the lesser of (a) 1.5% monthly; or (b) the highest rate allowed by law, until Fee and accrued interest are paid in full.
7.4 Taxes and Duties
Fees are exclusive of all applicable taxes or duties. All duties and taxes will be set forth in the invoice. If Provider is required to pay or collect any local, value added, goods and services taxes, or any other similar taxes or duties arising out of or related to any Services (excluding taxes based on Provider’s income), then such taxes or duties shall be billed to and promptly paid by Client.
8. CONFIDENTIALITY
8.1 Definitions
“Confidential Information” means all information (i) disclosed to Client in connection with these Terms, whether directly or indirectly, including by the order, acceptance, use or observation of Provider Goods and Services; (ii) that is proprietary or confidential to a third party that Provider is authorized to disclose to Client; (iii) created by Client that is based on or otherwise contains Confidential Information of Provider; and (iv) that the Parties are or will be in discussions relating to the Provider Goods and Services, and any of the terms, conditions, or other facts relating to these Terms. For the avoidance of doubt, you acknowledge that Visit Data is Confidential Information and, as such, are proprietary to Provider as part of Intellectual Property in Provider Goods and Services, except to the extent provided to Client for use as licensed, such as when aggregated and anonymized results have been processed and results of visit behavior and Website performance are reported to Client via the Analytics Dashboard or otherwise disclosed by Provider.
8.2 Exceptions
Confidential Information does not include information that Client can demonstrate by contemporaneously dated written records (i) is or has become generally and conveniently available to the public through no breach of these Terms; (ii) was in the possession of the Client prior to disclosure by Provider and Client is not otherwise subject to a confidentiality obligation related thereto; or (iii) is provided to Client by a third party under no obligation of confidentiality. If Confidential Information becomes available under any such exceptions, Client will not disclose that such information was disclosed to it by or on behalf of Provider or sourced by Provider. Confidential Information relating to specific lines of code, or configuration of any one of the Provider Goods and Services for Client does not fall within the above exceptions to confidentiality, merely because it is embraced by more general publicly available information. In addition, any combination of features will not be deemed to be within the above exceptions merely because individual features are available to the public.
8.3 Confidentiality
Except as expressly permitted by these Terms, Client will not disclose Confidential Information to any third party, and Client will only use Confidential Information in connection with Client’s licensed use of the Provider Goods and Services, as set forth in Section 4. Client may disclose Confidential Information if required by law or by a court or governmental agency, if Provider is given reasonable notice and opportunity to contest the required disclosure, and if the disclosure cannot be successfully contested then Client may disclose the Confidential Information only to the extent legally required.
8.4 Limited Disclosure
Client may disclose Confidential Information to only those employees or other representatives having a need-to-know in connection with Client’s licensed and permitted use of Provider Goods and Services, who have been advised of the confidential nature of the information, and who are bound by confidentiality terms and non-use obligations substantially like those in these Terms. Client will be responsible for any breach of these Terms by its employees or other representatives.
8.5 Degree of Care
Client will use the same degree of care to safeguard Confidential Information against disclosure and misuse, that Client uses with its own confidential information, but in no event less than reasonable care. Client will hold and maintain Confidential Information in strict confidence and in trust for the sole and exclusive benefit of Provider.
8.6 Duration
Provider’s obligations of confidentiality and non-use for Confidential Information disclosed under these Terms will extend for five (5) years from the date of each separate disclosure, except that Confidential Information relating to coding, trade secrets or processing know-how will not expire unless it is subject to one or more of the exceptions listed in Section 8.2.
8.7 Return or Destroy
Upon the earlier of termination or cancellation of a Client’s user account or order for services, or discussions between the Parties, or otherwise upon written request by Provider, Client will promptly return all Confidential Information to Provider or certify that all Confidential Information has been destroyed, including without limitation materials created by Client based on or otherwise containing Confidential Information. Client may retain one archival copy for record keeping purposes if required by law.
8.8 Disclaimer
Provider makes no representation or warranty, and expressly disclaims all representations and warranties, express or implied, as to the accuracy or completeness of Confidential Information or otherwise.
8.9 Injunctive Relief
Client acknowledges that any disclosure or misappropriation of any Confidential Information in violation of these Terms may cause Provider irreparable harm, the amount of which may be difficult to ascertain. Provider will have the right to apply to a court of competent jurisdiction for an order restraining any threatened or further disclosure or misappropriation of Confidential Information, along with any other relief available to Provider at law or in equity.
8.10 Client Information
Client will not share with Provider or Provider’s affiliates any confidential information unless a disclosure of Client’s own confidential information is necessary in connection with a particular implementation of Provider Goods and Services (a “Project”). If Client discloses confidential information to Provider or Provider’s affiliates, Client will (i) not disclose information which Client knows, or has reason to believe, infringes any third party intellectual property right or misappropriates any trade secret or other property right of any third party; (ii) mark such confidential information as “Confidential” when shared; and (iii) identify as “Confidential” confidential information disclosed orally when first disclosed, and clearly describing the information as “Confidential” in a writing that is delivered to Provider within thirty (30) days of disclosure.
9. Duration and Termination
9.1 Duration
If there is a limited duration for Services as per the terms of a subscription or order, the duration will be as set forth therein, but otherwise shall remain in full force and effect for the duration that Client maintains a user account with Provider, unless either Party provides 30 days’ advance written notice to the other of its intention to terminate or cancel any Services or account. Notwithstanding anything in these Terms to the contrary, if at any time, the Fees are less than one thousand dollars ($1,000) over three (3) consecutive calendar months, Provider may terminate any Services or Client’s account in its sole discretion with thirty (30) days advance written notice.
9.2 Termination for Cause
Either Party may terminate any subscription, order, or account, or block access to or use of any Provider Goods and Services: (i) for default on any payment obligation or other material breach by the other Party, if such breach is not cured within thirty (30) days after written notice to the breaching Party; (ii) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (iii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (iv) immediately for intellectual property infringement, breach of confidentiality, or fraudulent or willful misconduct by the other Party. Provider may revoke or terminate Client’s account, or modify, suspend, or terminate any or all licenses of Provider Goods and Services, or restrict or block Client’s access to or use of Provider’s website or any other Provider Goods and Services, if, in Provider’s sole reasonable judgment, any such use or access by Client: (1) is subject to an order from a court, governmental entity or regulator stating that such use must cease; or (2) violates applicable law or export control sanctions. Any of the above described terminations by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party.
9.3 Effect of Expiration or Termination
Subject to Section 9.4, Client’s right to access and use the Provider Goods and Services shall immediately terminate on the date of expiration or termination. Upon expiration or termination: (i) all permissions and licenses granted hereunder immediately terminate; (ii) Client immediately ceases all use of the Provider Goods and Services, and delete all copies of the Provider Goods and Services including Confidential Information from devices, networks, or systems under Client’s possession or control except as permitted otherwise in Section 8.7 for Confidential Information; (iii) Client is immediately due to pay Provider any amounts outstanding for the Provider Goods and Services; and (iv) Provider may immediately deactivate Client’s account and that following a reasonable period of not less than thirty (30) days shall be entitled to delete Client’s account or access to the Analytics Dashboard or other hosted reporting site. Provider, as owner of Visit Data, has continued rights thereafter to use Visit Data collected through the Analytics API prior to termination.
9.4 Survival
The provisions, which by their nature or context are intended to survive any termination or expiration, shall survive any termination, such as Section 8 (Confidentiality), any outstanding payment obligations, and the remaining Sections 9 through 11 in these Terms.
10. REP & WARRANTY, INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 Mutual Representations and Warranties
Each Party represents and warrants that: (a) it has all necessary or applicable authorizations to perform its obligations and exercise its rights under these Terms, such as Client representing and warranting that it owns all rights to its domain name, the Website, and the advertising and other content generated by Client hereunder; (b) it will comply with any and all laws (including statutes, ordinances, rules, regulations, and orders of public authority) applicable thereto, whether federal, state, or local, including, but not limited to, federal and state tax and social security laws; and (c) these Terms do not and will not violate the terms of any other contract, covenant or agreement between either Party and any third party.
10.2 Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, EACH PARTY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY REPRESENTATIONS OR WARRANTIES CONCERNING RESULTS OBTAINED FROM PROVIDER OR PROVIDER GOODS AND SERVICES IN CONNECTION WITH USE OF PROVIDER GOODS AND SERVICES AND ANY REPRESENTATIONS OR WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR COURSE OF PERFORMANCE. PROVIDER DOES NOT WARRANT THAT THE PROVIDER GOODS AND SERVICES WILL MEET THE BUSINESS REQUIREMENTS OF CLIENT, OR THAT OPERATION OR USE THEREOF WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION (INCLUDING IN THE DOCUMENTATION AND SPECIFICATIONS) WILL CREATE ANY REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THOSE EXPRESSLY PROVIDED IN THESE TERMS UNLESS MEMORIALIZED IN A WRITING SIGNED BY PROVIDER EXPRESSLY GRANTING SUCH REPRESENTATION OR WARRANTY.
10.3 Client Indemnification
Client will, at its expense, release, defend, indemnify and hold harmless the Developer and its affiliates, as well as the employees, officers, directors, agents, and other representatives of them (all Developer’s “Related Persons”) from and against any damage, liability, cost or expense (including reasonable attorneys’ fees and court costs) arising out of any claim or action brought against Developer to the extent that it is based on (a) Client’s use of the Developer Goods and Services in violation of these Terms or applicable laws, rules, or regulations, except to the extent such claim is based on the material breach of Developer’s representations, warranties or obligations hereunder; (b) a claim that the information provided by Client, the content posted on the Website and advertisements generated by Client, in the form provided by Client and used by Developer in accordance with these Terms, infringes a third party’s Intellectual Property; or (c) a breach of Client’s representations and warranties. Notwithstanding Client’s defense of any claim, Developer may participate in defense and settlement through its own counsel at its sole expense.
10.4 Remedies From Developer
If Client’s use of any of Provider Goods and Services is, or in Provider’s opinion is likely to be, enjoined due to infringement or terminated due to actions or omissions of Provider’s third party DSP, DMP, media platforms, or trading platform or ad exchange partners, then Provider, at its sole option and expense, will have the right to either: (a) procure for Client an alternative means to allow Provider to continue providing Services in accordance with these Terms; or (b) substitute or modify the allegedly infringing item or service to avoid infringement, if applicable, while retaining equivalent functionality; or (c) if options (a) and (b) cannot be accomplished after Provider’s exercise of commercially reasonable efforts, Provider may terminate Client’s account, and terminate use and access by Client of Provider’s website or other Provider Goods and Services, upon notice to Client. The Remedies in this section will not apply, and Provider has no obligation to remedy any breach to the extent of any claim arising from: (a) modifications that were not made or expressly authorized by Provider; (b) Client information or content; (c) use of the Provider Goods and Services in combination with data, products, programs or equipment not provided by Provider; or (d) use of an allegedly infringing version of the Provider Goods and Services after Client has been notified by Provider of such alleged infringement.
10.5 Beyond Developer’s Control
Provider will not, in any event, be liable, and Client disclaims all claims and liability due to any delay or change in output or performance of Provider Goods and Services to the extent attributable to any delays or misinformation or incomplete information from Client, or actions or omissions by third party providers, which Client acknowledges are beyond Provider’s influence or control.
10.6 No Indirect Damages
IN NO EVENT SHALL PROVIDER BE LIABLE TO THE CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES REGARDING THESE TERMS OR RESULTING FROM OR IN CONNECTION WITH PROVIDER GOODS AND SERVICES, OR THEIR USE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF NOTIFIED HAS BEEN PROVIDED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL PROVIDER BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.7 Limits on Liability
Except for Fees owed hereunder, the total aggregate liability of either Party arising out of or in connection with these Terms shall not exceed the amount of Fees paid or payable by Client to Provider as consideration for the Provider Goods and Services, and other products or services giving rise to such claim during the twelve (12) months preceding the date on which the cause of action arose. For purposes of the entirety of this Section 10, references to Provider shall also include its third-party providers and licensors.
10.8 Sole Remedy
OTHER THAN THE RIGHT TO TERMINATE AS SET FORTH IN SECTION 9, THE FOREGOING PROVISIONS OF THIS SECTION 10 ARE EACH PARTY’S SOLE AND EXCLUSIVE OBLIGATIONS AND EACH PARTY’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM ARISING OUT OF OR RELATED TO PROVIDER GOODS AND SERVICES OR OTHERWISE TO THESE TERMS.
11. GENERAL PROVISIONS
11.1 Announcement
Any press release(s), announcement, or similar publicity statement(s) of any nature regarding these Terms shall not be issued by either Party without the other Party’s prior written consent. Notwithstanding anything to the contrary, either Party may (a) make an announcement or written statement required to be made by law or the regulations of any state or federal governmental agency, and (b) use the other Party’s name, URL, and logo on its website and in its customer and partner lists for corporate and financial presentations. Without limiting the forgoing, the Parties agree that nothing herein shall constitute an endorsement of the other.
11.2 Assignment
None of Client’s rights or obligations under these Terms may be assigned by operation of law or otherwise by Client, without the prior written consent of Provider. Further, no assignment will relieve the assignor of any outstanding payment obligation until the amount is paid in full, or of any other obligations until these Terms have been assumed by the assignee. These Terms will be binding upon and will inure to the benefit of Provider permitted successors or other assignees. Any unconsented assignment under this Section 11.2 shall be null and void ab initio and without force or effect.
11.3 Terms
These Terms set forth the full and complete understanding of the Parties regarding the subject matter, and supersedes all prior agreements, arrangements, understandings, and representations. Nothing in these Terms obligates either Party, and neither Party will use any part of these Terms to argue that either Party is obligated to grant any other rights or provide any other goods or services beyond those expressly set forth in these Terms. To the extent that these Terms prohibit either Party from any type of use or activity, the Party is bound to prohibit and to not instruct others to do or attempt to do the same.
11.4 Force Majeure
Provider will not be liable for any delay or failure of its performance under these Terms due to events beyond its reasonable control (a “Force Majeure”) if Provider provides prompt written notice to Client of such Force Majeure and uses its diligent efforts to resume performance. Provider’s time to perform and Client’s payment obligations in connection therewith, if any, will be extended for a period equal to the duration of the delay caused by the Force Majeure.
11.5 Governing Law and Jurisdiction
THESE TERMS WILL BE GOVERNED BY THE LAWS OF THE STATE OF TENNESSEE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EXCLUSIVE JURISDICTION AND VENUE WILL BE IN A COURT IN OR NEAREST TO DAVIDSON COUNTY, HAVING JURISDICTION TO HEAR THE DISPUTE IN THE STATE OF TENNESSEE. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from these Terms.
11.6 Headers
Section headers (including subsections) are used herein for convenience and reference, but in no way define, limit, or describe the scope or the intent of the section or any paragraph in a section. References to a whole number of a Section, e.g., “Section 11” refers to and includes all the subsections and parts in Sections 11.1 through 11.12.
11.7 Independent Parties
The Parties are independent contractors, and these Terms do not and are not intended to be interpreted to establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Personnel employed by either Party who perform duties related to these Terms shall remain under the supervision, control, and management of their respective employer and shall not in any event be considered employees of the other Party. Accordingly, each Party shall be responsible for payment of all federal income tax and all other taxes and will, accordingly, file, remit and pay all required amounts attributable to payments made by Client to Provider as an independent contractor to all taxing authorities, as required by law.
11.8 No Benefit to Others
The provisions of these Terms are for the sole benefit of the Parties hereto and their successors and permitted assigns and shall not be construed as conferring any rights on any other persons or conferring to any third party the status of third-party beneficiary of these Terms.
11.9 No Construction Against Drafter
The Parties agree that any principle of construction or rule of law that provides that an agreement shall be constructed against the drafter of these Terms shall not apply to these Terms.
11.10 Notices
All notices, consents and other communications required or permitted to be given under these Terms will be in writing and delivered by electronic or other wireless transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt, except for electronic wireless transmissions that will be deemed given upon delivery unless a transmission error message that is automatically generated by the communication systems is returned to the sender. All notices, consents and communications will be sent to the addresses set forth on the signature page or to such other address as may be specified by either Party to the other in accordance with this Section.
11.13 Severability
Failure of either Party to require performance of any provision of these Terms will not affect that Party’s right to later enforce such provision. In the event any provision or part of these Terms is determined to be illegal or otherwise unenforceable by a court of law, that provision or part will be (a) modified to the minimum extent necessary to render that provision enforceable and preserve the Parties’ intent, or (b) severed, if necessary. The remainder of these Terms will continue in full force and effect.
11.14 Waiver and Amendment
Failure by either Party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision. No provision, requirement, or breach of these Terms may be waived by either Party except in writing. Any modification or other amendment to these Terms will be effective only if in writing and signed by duly authorized representatives of both of the Parties.
