USER LICENSE AND SERVICE AGREEMENT
This User License and Service Agreement, including any related Order Form (if applicable) which by this reference is incorporated herein (this “Agreement”), is a binding agreement between Clickagy, LLC (“Clickagy”, “we” or “us”) and the person or entity using Clickagy’s services or Software hereunder (hereafter, the “Client” or “you”). This Agreement is dated as of the date you click the “I AGREE” button below (hereafter the “Effective Date”), and no further actions will be necessary by you or us to effectuate a binding Agreement. Each of you and us may be referred to herein as a “Party”.
CLICKAGY PROVIDES ITS SERVICE AND USE OF ITS SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND AGREE TO COMPLY WITH THEM. BY CLICKING THE “I AGREE” BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND ARE BOUND TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT AND DO NOT AGREE TO PROVIDE SERVICES OR LICENSE OUR SOFTWARE TO YOU AND YOU MUST NOT USE THE SERVICES OR OUR SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR AGREEMENT AND ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF CLICKAGY’S SOFTWARE.
The following Terms and Conditions are applicable to the relationship between you and us. Some terms are applicable regardless of the services your have selected to receive from Clickagy, and others are applicable only dependent upon the service(s) you have chosen to use. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Clickagy hereby agree as follows:
A. General Terms and Conditions.
This following general terms and conditions are applicable to you regardless of the Clickagy Service you have selected: Clickagy DSP, Clickagy Insights or Clickagy Audience Lab.
- Definitions. (a) “Additional Terms” means those additional terms and conditions which are applicable to the Services requested by you, which are attached detailed below in Sections B, C and D, which are incorporated by reference into this Agreement, as applicable to the Services you are requesting hereby. (b) “Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party. (c) “Agreement” shall mean this Agreement and all Orders attached hereto (if any). (d) “Client” means a third party (e.g., an advertiser) on whose behalf you utilize the Service. (e) “Company Data” means your data, as derived from your use of the Services. (f) “Confidential Information” means any information that is disclosed, provided or made accessible by, or on behalf of, one Party to the other Party in connection with this Agreement, and which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary (including any proprietary strategies, information, data, or reports used by us in performing Services), but does not include information or material that the recipient already knew or possessed, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information. (g) “Fee” or “Fees” shall mean the amount that you agree to pay Clickagy in compensation for Services rendered as set forth herein. The Fee shall also include any additional expenses specified and agreed to in this Agreement or in any Order. (h) “Personally Identifiable Information” or “PII” means information that by itself can be used to identify a specific individual. PII includes a person’s name, address, phone number or email address. (i) “Law” means any applicable law, rule, or regulation (j) “Order(s)” shall mean any order for Services accepted by Clickagy to perform on behalf of you and setting forth the type of Services to be provided, any specific provisions associated with those Services, job description, the fees associated with the Services to be provided and any other miscellaneous information relevant to this Agreement. In the event of any conflict between the terms of this Agreement and the terms of an Order, the terms of this Agreement shall control. (k) “Service Policies” means any policies for use of the Services that are communicated to you, as may be modified from time to time. (l) “Services” shall mean the services provided by Clickagy for you as set forth in this Agreement or any Order, as further defined in the Additional Terms and Conditions applicable to such Service. (m) “Sites” means the digital properties (e.g., websites and applications) for which a Service is utilized.
- Engagement of Services. This Agreement contains the terms and conditions upon which you have engaged Clickagy to provide you with Services. The Services that you have requested of us will be determined by your usage of our assets or as otherwise indicated in any applicable Order, which may be updated by mutual agreement between you and us, from time to time. By your entry into this Agreement, you agree to abide by of the terms of this Agreement, including all applicable incorporated elements hereof.
- Term; Termination. This Agreement will be effective from the Effective Date and continue until its expiration, as determined by which Services are being provided and in the applicable Additional Terms, or is earlier terminated as permitted hereunder. Each Party may terminate this Agreement upon thirty (30) days advance notice to the other Party; provided, however, that any payment obligations that accrued prior to termination will remain due (and any monthly or recurring fees will not be prorated for any partial use). We may immediately suspend your use of the Services without notice if you breach any of your representations or material obligations hereunder, as reasonably determined by us, or have failed to pay any amount due or invoiced hereunder as of the applicable payment due date. Notwithstanding termination of this Agreement, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
- Fees, Retainers and Payment; Remedies for Non-Payment.
4.1 Payments Generally. By acceptance of the Services, you agree to pay the Fees for such Services, according to the pricing information provided to you for the Services you select, and the selections you make based on budget and usage limitations. You agree to make prompt and full payment of any Fees upon any due date, and you further agree that you will remit all payments within thirty (30) days from the end of the month when charges are accrued, unless otherwise specified in writing. Unless otherwise specified in an Order, amounts owed for Services must be pre-paid, in U.S. dollars, by wire transfer, check, “Automatic ACH” electronic funds transfer, or other means agreed to in writing. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. You will promptly provide us with information reasonably required to complete our payment review process, which could impact the foregoing payment terms and conditions. Periodically, we may adjust your payment terms if your credit status or Service use changes by providing notice prior to the commencement of the billing period to which such adjusted payment terms apply. No fees owed to us will be prorated if you decide to cease use of the Services or terminate this Agreement prior to the end of a payment period. We may, at our sole expense, run business credit checks on you, by making use of any reputable business credit reporting vendor.
4.2 Other Fees. Other fees—such as Platform Fees and Analytics Fees—may be charged, in accordance with the Company’s standard billing practices, for optional services requested by you, in conformance with Clickagy’s current fee schedule.
4.3 Late Payments and Suspension. If any amount payable by you is not paid when due, then, without limiting any other rights which we may have as a result of such late payment, the amount unpaid shall, as a finance charge, bear interest until paid at a monthly rate of one and one-half percent (1.50%), or the maximum amount permitted under law, whichever is less, with such interest to be paid on demand together with all costs incurred by us to collect the amounts due hereunder, including but not limited to reasonable attorneys’ fees. In addition, if you fail to pay fees due by the applicable payment due date and are not disputing them reasonably and in good faith, we may suspend Services, in whole or in part, upon notice to you.
4.4 Taxes. Charges for Services do not include any taxes or government charges levied by or due to any duly authorized taxing authority and you will pay any such taxes and government charges derived from or imposed on transactions through the Services, including sales, value-added, goods and services, use, transfer, withholding, privilege, excise and other taxes and duties.
- Representations and Obligations.
5.1 Our Representations and Obligations. We represent and warrant that we (i) have and will have all necessary rights and authority to enter into this Agreement and any Order, and provide Services to you, and (ii) will provide notice to you of material changes to any Service Policy (unless you opt out of such notice). We may invite you to try Service features that are expressly identified as “Beta”, “Alpha”, “Pre-Release”, or similar, or that are otherwise expressly identified as unsupported (“Beta Services”). Beta Services may be subject to additional terms, and we will have no liability arising out of or resulting from any Beta Service.
5.2 Your Representations and Obligations. You represent and warrant that you (i) have and will have all necessary rights and authority to enter into this Agreement and any Order and perform your obligations hereunder; and (ii) are and will be authorized to act on behalf of yourself and/or each of your Clients (and will be liable for their acts and omissions in connection with Services), if applicable. You will (i) be solely responsible for all use of Services; (ii) will use the Services in compliance with your other agreements; (iii) will not violate any applicable Laws or attempt to cause us to violate any such Laws; and (iv) comply with, and agree to be bound by, the Service Policies, which are incorporated into this Agreement by reference. Your Affiliates may receive Services under this Agreement; provided you will be liable for the acts and omissions of any such Affiliate.
- Confidentiality and Ownership of Data.
6.1 Confidentiality. Any Party receiving any Confidential Information may use Confidential Information only to exercise its rights and fulfill its obligations under this Agreement and must use reasonable care to protect Confidential Information. The receiving Party will not disclose Confidential Information, except (i) to employees, subcontractors, or professional advisers, who need to know it and who are obligated to keep it confidential, and (ii) as required by court order, Law or governmental or regulatory agency (after giving reasonable notice to the disclosing Party and using commercially reasonable efforts to provide the disclosing Party with the opportunity to seek a protective order at the disclosing Party’s expense, if permitted by applicable Law). The fact that you are a customer of Clickagy is not your Confidential Information. Subject to the use and disclosure rights in Section 6.2, Company Data is your Confidential Information.
You further agree that Company Data derived by Clickagy from Clickagy’s performance of the Services or input by you may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis may be used by Clickagy for any lawful purpose.
In addition to, and in no way limiting the foregoing, you expressly acknowledge and agree that Clickagy may capture and encrypt/one-way-hash any e-mail addresses which constitute Company Data, for the purposes of facilitating cross-device linking, onboarding, or any other technology that leverages the cookie to hashed e-mail link, including, but not limited to, delivering e-mail hashes to third parties for marketing or analytics, based on the cookie behaviors observed on their website, and any such disclosure shall not be deemed a violation of this general treatment of your data discussed in this Section 6.2.
6.3 Proprietary Rights. Each Party owns and retains all right, title and interest in and to all of its intellectual property, and no rights are granted to us or you in the other’s intellectual property except as expressly set forth in this Agreement. For us, this includes all aspects of our technology and Services, including any software or applications developed, created, or licensed by us (or on our behalf). You grant to us a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by you or your clients relating to the operation of the Services.
- Publicity; Press Releases. Each Party grants the other Party the limited right to use other Party’s name and logo on customer lists and informational or promotional materials. Neither Party will issue any public communications concerning this relationship without the prior written consent of the other Party.
- Disclaimers and Limitations of Liability. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CLICKAGY EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES TO BE RENDERED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT, CONFIDENTIAL INFORMATION OR NON-PAYMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY OR CLIENT OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM DELAY, LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF CONTENT, INTERRUPTION OF BUSINESS OR LOSS OF GOODWILL, WHICH MAY ARISE IN CONNECTION WITH OR PERTAINING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBLITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING UNDER ANY THEORY OF LAW (INCLUDING TORT OR OTHER THEORY). EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT, CONFIDENTIAL INFORMATION OR NON-PAYMENT, IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID PURSUANT TO THE APPLICABLE SERVICES FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
- Indemnification. Each Party (in such capacity, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its officers, directors, employees, and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (i) breach or alleged breach of this Agreement, or (ii) infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright in connection with (a) with respect to us, the software and other technology owned by us that we use to provide the Services hereunder, and (b) with respect to you, the software, creative, technology, data, or other materials you provide or use with the Services (and, with respect to DSP customers, Sites (containing Ad Inventory)) (“Company Materials”) (the indemnification obligation of each Party described in this clause (ii), the “IP Infringement Obligation”). The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of this Agreement or intellectual property infringement or misappropriation.
The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the any third-party claim (provided that failure to promptly notify will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure), (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter, and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may at its expense join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party, and (B) includes a complete release of liability in favor of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
Our IP Infringement Obligation will not apply to claims to the extent arising from (i) your use of the Service in violation of this Agreement; (ii) the Company Materials’ infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright; or (iii) the combination, operation or use of the Service with any product or service not provided by us. Your IP Infringement Obligation will not apply to claims to the extent arising from (i) our provision of the Service in violation of this Agreement; or (ii) the Services’ infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright. If a Service becomes, or in our reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then we will promptly notify you and, at our sole option and expense, may either: (x) procure the right to continue providing the Service as contemplated by this Agreement; (y) modify the Service to render it non‑infringing; or (z) replace the Service with a functionally equivalent, non‑infringing service. If none of the foregoing options is commercially practicable, then each Party will have the right to terminate this Agreement with respect to the infringing Service.
- Service Failures. Clickagy does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (a) caused by failures of or previously scheduled maintenance to Clickagy’s equipment or servers, (b) caused by outages to any public Internet backbones, networks or servers; (c) caused by any failures of your equipment, systems or local access services; or (d) relating to events beyond Clickagy’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Clickagy or your servers are located or co-located.
- Miscellaneous. (i) All notices under this Agreement must be in writing (which term shall include notices by email) and will be deemed given when delivered. All notices to Clickagy shall be sent to email@example.com, and all notices to you shall be emailed to you at an email address you have provided to us, or as provided in clause (v), with respect to changes to this Agreement. (ii) This Agreement is governed by Georgia law, excluding its conflicts of law rules. The jurisdiction and venue for all disputes hereunder WILL BE the state and federal courts in the County OF FULTON and State of GEORGIA, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. (iii) Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, except that this Agreement may be assigned without consent (x) to a person or entity who acquires, by sale, merger or otherwise, all or substantially all of the assigning Party’s assets, equity ownership or business, or (y) by any Clickagy entity to its Affiliate(s). Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this provision will be void and of no effect. (iv) This Agreement is the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject, including any exhibits for use of any Services executed prior to the Effective Date of this Agreement. (v) We reserve the right to change this Agreement or Additional Terms at any time, on thirty (30) days advance notice to you, provided that no changes will be applied retroactively, and material changes to the Services to be rendered may only be made with your permission. We will give you notice of the changes by emailing you at an email address you have provided. Any changes made for legal reasons will be effective immediately upon notice. (vi) If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. (vii) Each Party is permitted to use subcontractors in connection with this Agreement, but is liable for their acts and omissions. (viii) The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. (ix) Neither Party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, we do not guarantee any Service will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance. (x) You may not resell any Service, it being understood and agreed that your use of Services hereunder on behalf of Clients will not be deemed a breach of this clause (x). (xi) The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument. (xii) Either Party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either Party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such Party’s right to demand strict performance in the future.
B. Additional Terms and Conditions – Clickagy DSP (Advertising Trading Desk Services)
The following additional terms and conditions (these “Additional Terms”) accompany and supplement the Agreement between Clickagy and you, if you have selected Clickagy DSP as one of the Services to be provided to you. In the event of any conflict between these Additional Terms and the general terms above, these Additional Terms shall control.
- Additional Definitions. The following definitions shall be applicable to the Services covered by these specific Additional Terms, which shall be applied in addition to definitions listed in the general terms above. (a) “Ad Inventory” means digital advertising inventory, including display, mobile, paid search, application and/or widget-based advertising inventory. (b) “Advertising Transaction” means, as applicable, the actual or attempted purchase or sale of Ad Inventory, or the serving of Creatives to Ad Inventory, using the Services. (c) “Buyer” means a party (e.g., an advertiser, agency, DSP or network) that buys or attempts to buy Ad Inventory through a Service. (d) “Company Data” means, specifically to the Services covered by these Additional Terms, your data you derive from Advertising Transactions. (e) “Creative” means a digital advertising display creative, including a banner, video, audio or mobile advertisement. (f) “Seller” means a party (e.g., a publisher, network, ad exchange, or SSP) that sells or attempts to sell Ad Inventory through a Service. (g) “Service” means, with respect to these Additional Terms, technology, consulting, and related services that we provide our customers to facilitate Advertising Transactions.
- Services. Clickagy will perform the Services of an advertising trading desk: specifically, it will receive Creatives from you that link to landing pages created and maintained by you or your Clients; it will purchase Ad Inventory from a one or more Sellers on which to display those Creatives using Clickagy’s technology to maximize results for you; and provide you with reports on the performance of the placements. You may access and use, and we will provide, Services in accordance with an insertion order(s), in a form provided by Clickagy (each, an “Order”). Any additional terms and conditions in any Order are incorporated into this Agreement by reference and legally binding.
You understand and agree that, except as otherwise expressly provided herein, no refunds will be issued by Clickagy, for any reason, after payment has been received in connection with and Order.
- Additional Representations and Obligations.
3.1 Our Representations and Obligations. In addition to our representations contained in the general terms above, we represent and warrant that we will facilitate Advertising Transactions in accordance with the terms and conditions of the applicable Order.
3.2 Your Representations and Obligations. In addition to your representations contained in the general terms above, you represent and warrant that you have obtained, and grant to us, sufficient rights to access and use or monetize, as applicable, Creatives, Ad Inventory and Sites through the Services.
- Your Obligations and Service Rules.
4.2 Additional Service Rules.
(a) All executed Advertising Transactions are final, and you will be ultimately responsible for any and all payment obligations for your Advertising Transactions. You will have no recourse for (i) any Advertising Transaction that complies with the terms and conditions of the applicable Order Form (without regard, in any respect, to the performance of such Advertising Transaction), (ii) any discrepancy between your impression count under the Services and the impression count produced by your or a third party ad server, and (iii) any discrepancy between your click count under the Services and the click count produced by your or a third party ad server. Except to the extent caused by our negligence, grey gifs, system defaults and broken images will be counted as executed Advertising Transactions hereunder.
(b) Clickagy may reject, remove or deactivate Creatives and/or Ad Inventory for any reason, including non-compliance with their respective policies (including our Service Policies) or applicable Law.
4.3 Third Party Beneficiaries. We are neither the Buyer nor the Seller in Advertising Transactions, and we therefore do not assume, and expressly disclaim, liability with respect to Creatives, Ad Inventory or any Sites. To facilitate direct dispute resolution between Buyers and Sellers using our Services, each Buyer that purchases Ad Inventory from you is an intended third party beneficiary of your obligations as a Seller, and each Seller from which you purchase Ad Inventory is an intended third party beneficiary of your obligations as a Buyer hereunder (excluding payment obligations). You agree not to assert a defense based on lack of privity against any Buyer or Seller seeking to enforce this Section 4.3. Except as set forth in this Section 4.3, there are no third-party beneficiaries to these Terms.
- Data; Proprietary Rights.
5.1 Data. In connection with the rights granted to us with respect to Company Data in the general terms above, our rights shall include disclosure of impression information to the relevant counterparties in your Advertising Transactions.
5.2 Proprietary Rights. In addition to those rights detailed in the general terms above, we grant you the non-exclusive right to access and use our Services to conduct Advertising Transactions, subject to the terms and conditions of this Agreement.
- Publicity; Press Releases. Notwithstanding the general limitations contained above, we may issue public communications regarding the amount of Ad Inventory that you are expected to make available through the Services.
C. Additional Terms and Conditions – Audience Lab
The following additional terms and conditions (these “Additional Terms”) accompany and supplement the general terms and conditions between Clickagy and you, if you have selected Clickagy Audience Lab as one of the Services to be provided to you. In the event of any conflict between these Additional Terms and the general terms above, these Additional Terms shall control.
- Additional Definitions. (a) “Clickagy Data Marketplace” means Clickagy’s platform for Clickagy Data and Branded. (b) “Branded Data” means data that is attributed to a particular third party (e.g., using third party trademarks) and identified as Branded Data. (c) “Cookie” means a file that is saved on a computer or device when the computer communicates with a server, which the server uses to store or retrieve information about that computer. (d) “Impression” means a measurement of responses from an ad delivery system to an ad request from a Targeted User’s browser. (e) “Clickagy Data” means, data licensed or made available to you, by or on behalf of Clickagy pursuant to this Agreement. Clickagy Data includes but is not limited to Branded Data and audience data. Clickagy Data does not include your data. (f) “Clickagy Materials” means the Clickagy Data Marketplace, data management platform, Clickagy software code and any work products, reports, or other output or results, designs, methods, inventions, knowhow, techniques, applications, or other materials or technology, or any enhancements to the foregoing, that Clickagy uses or makes available to you in connection with this Agreement. The definition of Clickagy Materials does not include Clickagy Data. (g) “Pixel Tag[s]” means an object embedded in a web page, email or other digital platform that allows a server to track activity or save, read, or modify a Cookie on a computer or device. (h) “Rules” means all applicable laws, rules, regulations, regulatory guidelines and self-regulatory guidelines, including, without limitation, (i) all United States Federal Trade Commission (“FTC”) rules and guidelines regarding the collection, use and/or disclosure of information from or about a unique user of a website, application and/or mobile website and/or the device associated with such user, including without limitation the FTC Mobile Privacy Report dated February 2013 (currently available at http://www.ftc.gov/opa/2013/02/mobileprivacy.shtm; (ii) each of the Self-Regulatory Principles of the Digital Advertising Alliance (“DAA”), currently available at http://www.aboutads.info/principles, the Code of Conduct of the Network Advertising Initiative (“NAI”), currently available at http://www.networkadvertising.org/code-enforcement/code and the NAI Mobile Application Code (currently available at http://www.networkadvertising.org/mobile/NAI_Mobile_Application_Co de.pdf), and the Principles of the European Interactive Digital Alliance (“EDAA”), currently available at http://www.edaa.eu/europeanprinciples/, as each set of principles may be amended from time to time; and (iii) data protection and privacy laws applicable in the country or countries where data is collected or held or otherwise processed, which shall include but not be limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and the European Directives on Data Protection (95/46/EC) and concerning the processing of PI and the protection of privacy in the electronic communications sector (2009/136/EC), including any and all legislative and/or regulatory amendments or successors thereto, and any applicable implementing local legislation within the European Economic Area. (i) “Segment” means a non-personally identifiable classification of Clickagy Data, an individual or an individual’s behavior. (j) “Services” means, with respect to these Additional Terms, the provision of Clickagy Data, Clickagy Materials and related services under this Agreement and any Order that reference this Agreement or these Additional Terms. (j) “Services Period” refers to the period of time for which Company has ordered Services as specified in an Order. (k) “Site User” means a particular user of a Site, or a user whose particularity is determined via a mobile application, device, or by other statistical or deterministic means, and about whom Segment information is obtained. (l) “Target” or “Targeting” means the display of a media impression, advertisement, web page or other content to Targeted User. (m) “Targeted User” means a unique, anonymous user of a web browser or device (including mobile device) to whom you or a Client Targets a media impression, advertisement, web page, or other content.
- Clickagy Data and Clickagy Materials.
2.1 Access to the Clickagy Data Marketplace. To use the Clickagy Data Marketplace, you must register with Clickagy by providing accurate and complete information about your company. If you establish a login name and password, you must maintain the security of those credentials. You undertake that you will update all registration information as required to keep it accurate, current, and complete. Each agent, representative, employee, or any person or entity acting on your behalf with respect to the use of Clickagy Data is subject to and must abide by this Agreement.
2.2 Provision and Use. Subject to the terms of this Agreement and solely for your or, if applicable, your Client’s business operations, Clickagy hereby grants you a limited, nonexclusive, nontransferable, nonsublicensable right to use Clickagy Data and Clickagy Materials to Target content and advertisements to Targeted Users, as well as for your or your Client’s analytics and optimization purposes. Clickagy will use commercially reasonable efforts to make available to you the Clickagy Data that you order on the Clickagy Data Marketplace. Clickagy cannot guarantee the provision, accuracy, quality, quantity, integrity or reliability of any Clickagy Data to you, and Clickagy assumes no liability or responsibility related thereto whatsoever. Clickagy Data and Clickagy Materials are licensed, not sold by Clickagy to you. Clickagy and its suppliers reserve all rights, including intellectual property rights, in and to all Clickagy Data and Clickagy Materials not granted expressly in this Agreement. You must not, directly or indirectly copy, rent, sell, lease, or distribute any Clickagy Data or Clickagy Materials other than as permitted expressly hereunder.
You expressly understand and agree that after commencement of a Services Period, no refunds of any kind will be issued by Clickagy, whatsoever, related to the cancellation or termination of this Agreement, for any reason. Further, you expressly understand and agree that, if this Agreement is terminated, for any reason, all data delivered by Clickagy must immediately cease to be used by you in any way, and must be completely destroyed by you within thirty (30) days of termination.
In addition to, and in no way limiting to the foregoing, you agree that, unless you have purchased the “Analytics Usage” feature, you may not use Clickagy Data for any purpose other than serving display ads.
2.4 Suspension. If you are in breach or default of any obligation under this Agreement, or if use of Clickagy Data or Clickagy Materials in a particular country or region is restricted or otherwise becomes subject to any laws or regulations, or if in Clickagy’s reasonable judgment, the Clickagy Data Marketplace or any component of Services are about to suffer a significant threat to security or functionality, Clickagy may, in addition to any other rights and remedies, block or restrict your access to the Clickagy Materials, Clickagy Data Marketplace, Clickagy Data, and to other Clickagy technology, and otherwise suspend performance under this Agreement, without liability.
2.5 Execution Platform Provider. If one or more Execution Platform Provider Exhibits are identified in an Order, you may receive Clickagy Data from or through the third party identified in each such Order (each such third party, an “Execution Platform Provider”) in accordance with such exhibit. You, not the Execution Platform Provider, will be liable to Clickagy for any damages resulting from misuse of Clickagy Data, including, but not limited to, the combination of Clickagy Data with any other data source. You agree to obtain the Clickagy Data solely for its own use and not for resale or sublicensing purposes (i.e., no creation of a secondary data market).
- Privacy and Information Security.
3.1 Compliance with Rules. Clickagy will comply with all Rules directly applicable to Clickagy and its provision of the Clickagy Data to you. You will comply with all Rules applicable to its use of Clickagy Data and collection, use or provision to Clickagy of any data by you. The Parties agree to negotiate in good faith with each other to make any amendments to the Agreement as are reasonably necessary for compliance with the Rules. In the event of any change in the Rules or in the regulatory or self-regulatory environment in any applicable jurisdiction, Clickagy may, in its discretion, restrict your use of or access to Clickagy Data in such jurisdiction, without liability to you or any third party. In the event the Rules require terms to be in place between you and Clickagy in order to enable the onward transfer of PI, you may permit the onward transfer of Clickagy Data subject to either an adequacy finding (such as a current U.S. Safe Harbor certification) or the execution by the parties of applicable terms required by the Rules that enable such transfer (such as the EU Standard Contractual Clauses).
3.3 Adherence to Privacy Standards. You will not (i) use Clickagy Data for the purposes of making decisions about a Targeted User’s eligibility for employment, health care, credit or insurance, or for making decisions solely by automatic means where the decision has a significant effect on the Targeted User, or in any way that does or can be used to discriminate against any person or promote bigotry, racism or harm, (ii) provide to Clickagy any data that falls under any of the sensitive data definitions contained in the DAA Principles or the NAI code, as they may be revised from time to time; or (iii) provide to Clickagy any data collected from sites directed to children under the age of thirteen (13) or from site users whose age you know to be under 13. Clickagy may, at its sole discretion, decline to receive specific data, categories or interest segments.
3.4 No PI that Directly Identifies an Individual. You will not provide Clickagy with, and will not associate, or attempt to associate, Clickagy Data with, any PI that directly identifies an individual (including, without limitation, an individual’s name, email address, government assigned identifier, telephone number, health information and payment card information). You will not derive, or attempt to derive, PI that directly identifies an individual from any Clickagy Data (including without limitation configuring or otherwise causing any Cookie, Pixel Tag, or other technology to capture or transmit any such PI to Clickagy). You will promptly notify Clickagy if you discover that it has passed any PI that directly identifies an individual to Clickagy.
3.5 Precise Location Information. If you provide Clickagy with precise location data or other location data protected under applicable Rules, you represent and warrant the following: (a) where you obtained such data directly from a Targeted User’s device, you obtained the Targeted User’s opt-in consent to the collection, use and disclosure of such information for the purposes set forth in this Agreement; (b) where you obtained such data in any other manner, you obtained reasonable assurances that the applicable mobile application obtained the Targeted User’s opt-in consent to the collection, use and disclosure of such information for the purposes set forth in this Agreement; (c) you will provide Clickagy only with real latitude/longitude coordinates passed directly from the Targeted User; and (d) you will not provide to Clickagy, data that consists of derived location coordinates from IP address, postal/zip code or any other geography.
3.6 Data Security. You will ensure appropriate administrative, technical and physical safeguards are implemented and maintained to: (a) protect the security, confidentiality and integrity of Clickagy Data, and (b) protect Clickagy Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing. Such safeguards shall be no less stringent than those that you use to protect its own data of a similar nature and industry standard practices.
3.7 Breach Notification. You shall promptly notify Clickagy if there has been any accidental or unauthorized access, disclosure, use, loss, damage or destruction of Clickagy Data that compromises the security, confidentiality or integrity of such data by any current or former employee, Client, contractor or agent of yours or by any other person or third party (“Security Incident”). You shall cooperate with Clickagy in the event of such Security Incident and take reasonable measures to limit the unauthorized disclosure or use.
- Technical Requirements and Reporting. You are responsible for the technical requirements set forth in applicable exhibits or Order (including without limitation any reporting requirements set forth in such exhibit(s)) to this Agreement (e.g., Execution Platform Provider Exhibit(s)). You will cooperate to configure and integrate their systems as necessary within the scope of Services under the Agreement. You are responsible for configuration and integration Services (and any applicable fees).
- Fee Audits. Clickagy may audit your data usage to assess whether your use of the Company Data and Services is in accordance with the terms of the Agreement. You agree to cooperate with Clickagy’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay, within ten (10) business days of written notification, any fees applicable to your use of the Company Data in excess of your reported usage. If you do not pay, Clickagy can end your rights to use the data and/or this Agreement. You agrees that Clickagy shall not be responsible for any of your costs incurred in cooperating with the audit.
D. Additional Terms and Conditions – Clickagy Insights.
The following additional terms and conditions (these “Additional Terms”) accompany and supplement the general terms and conditions between Clickagy and you, if you have selected Clickagy Insights as one of your Services to be provided to you. In the event of any conflict between these Additional Terms and the general terms above, these Additional Terms shall control.
- Fees and Service. At the Effective Date, the Service is provided without charge to you. Clickagy may change its fees and payment policies for the Service, from time to time, including the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Clickagy or its wholly-owned subsidiaries by third party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon your acceptance of those changes which will be provided to you.
- Member Account, Password, and Security. To register for the Service, you must complete the registration process by providing Clickagy with current, complete and accurate information as prompted by the registration form, including your email address (username) and password. You will protect your passwords and take full responsibility for your own, and third party, use of your accounts. You are solely responsible for any and all activities that occur under your Account. You will notify Clickagy immediately upon learning of any unauthorized use of your Account or any other breach of security. Clickagy’s (or its wholly-owned subsidiaries') support staff may, from time to time, log in to the Service under your customer password in order to maintain or improve service, including to provide you with assistance with technical or billing issues.
- Special Termination Provisions
5.1 In General. Clickagy may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement, for excessive data usage or other types of abuse, or for any other reason. You may also terminate your use of the Services at any time.
5.2 Effect of Termination of Services. Upon any termination of the Services (i) Clickagy will cease providing the Services; (ii) you will delete all copies of the Clickagy script from your web page(s); (iii) any outstanding balance payable by you to Clickagy will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through Clickagy. In addition, upon expiration of any session with respect to a web page, you shall delete all copies of the Clickagy script from such web page. You understand and acknowledge that, unless and until the Clickagy script is deleted from a web page, the Clickagy script may continue to track information on such web page on an automated basis.
- Nonexclusive License. Subject to the terms and conditions of this Agreement and these Additional Terms, (a) Clickagy grants you a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the CITC solely as necessary for you to use the Service on your Properties or Third Party’s Properties; and (b) You may remotely access, view and download your Reports. You will not (and you will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which you are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service for purposes other than generating, viewing, and downloading Reports. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, Service and Reports.
- Third Parties. If you use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through your Account, whether or not you are authorized by Clickagy to do so, then you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that you have under this Agreement, (b) Clickagy may share with the Third Party any Customer Data that is specific to the Third Party’s Properties, and (c) You will not disclose Third Party’s Customer Data to any other party without the Third Party’s consent.
- Additional Limitation of Liability. IN ADDITION TO THE LIMITATIONS OF LIABILITY CONTAINED IN THE GENERAL TERMS ABOVE, THE SERVICES, AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CLICKAGY EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE CLICKAGY SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CLICKAGY DOES NOT WARRANT THAT THE SERVICES, THE CLICKAGY SCRIPT OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE (IF ANY) CHARGED FOR THE SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.