These Terms of Service together with any applicable Statements of Work, orders, addendums, exhibits and/or such related documents (collectively, the “Agreement”) shall describe any and all terms and conditions under which you (the “Client”) may access and use the Company’s Services.
IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY (FOR EXAMPLE, AS AN ADVERTISING AGENCY OR AUTHORIZED RESELLER ON BEHALF OF A CLIENT), CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY, AND THE TERM “CLIENT” WILL ALSO REFER TO SUCH ENTITY.
THE COMPANY MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, AS NEEDED. CLIENT’S CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, CLIENT AGREES TO RESOLVE ANY AND ALL DISPUTES WITH THE COMPANY EXCLUSIVELY THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND CLIENT WAIVES CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 15 OF THIS AGREEMENT BELOW.
- “Account” means a Client account for access to, and use of, the Services.
- “Ad” or “Advertisement” means any and all displayed creative advertisement and such related materials that is targeted to an end user through the Company’s Services.
- “BitBounce Ads Materials” means the Platform, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Services, including related modifications and derivative works.
- “Agency” means an advertising agency acting on behalf of a Client.
- “Applicable Law” means any and all applicable federal, state, local, municipal or foreign laws or regulations or any industry self-regulatory rules, customs, or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC and the General Data Protection Regulation (the “GDPR”) upon its effective date) that relate to a Party’s obligations under this Agreement.
- “Authorized Resellers” means resellers approved by the Company in its sole discretion.
- “Campaign Data” means performance and measurement data made available through the Platform and/or Services that relates to the Client’s Ads and campaigns launched through the Services.
- “Client” means any Party, either entity or individual, or any entity acting on behalf of another Party, itself either an entity or individual, that engages Company for its Services or is otherwise bound by the terms of this agreement.
- “Client Content” means all logos, Ads, background images, trademarks, fonts, hex codes, images, graphics, text, audio, video files, product feeds, and any and all other content in any media and format provided by Client or obtained or produced by the Company for use with or for the Services.
- “Client CRM Data” means any email addresses or other CRM data about Client’s end users, customers or prospective customers provided by Client or obtained by the Company in connection with or for the Services.
- “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided and/or produced by the Company to Client.
- “European Territories” mean the European Economic Area and Switzerland. For the purpose of this Agreement, the expression "European Territories" shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
- “Feedback” means information regarding the features and performance of the Services and Materials, including, without limitation, reports of failures, errors, bugs, or other malfunctions that Client encounters through its use of the Services.
- “Statement of Work” means a document executed by both Parties to this Agreement that specifies the type of Services to be provided to Client by the Company for campaigns, the duration of the Services, a budget, fees, and other specific details for the Services.
- “Managed Account” means a Client account that the Company provides support to and meets minimum spend requirements that may be adjusted from time to time at the Company’s sole discretion.
- “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources or partners that the Company has partnered with to provide the Services.
- “Platform” means the Company website, dashboard, and tools that the Client has access to through the Services to create, launch, monitor, pause, and stop an Ad or campaign.
- “Product Addendum” means any Service’s specific terms and conditions, as stipulated within the particular addendum.
- “Services” means any Company offering that the Client agrees to receive, subject to this Agreement, any applicable Product Addendums, and, if applicable, Statement(s) of Work.
- “Service Data” means data, and each component of such data, that is collected by the Company from end users using a pixel or other script or code installed on Client’s website, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include any Client CRM Data or Campaign Data. If Client has configured or agreed for the Company to implement the pixel or other script or code to send end user email addresses from Client’s website to the Company or has authorized the Company to collect and store end user email addresses, these end user email addresses will be Service Data.
- “Technology” means everything up to, including, but not limited to, the Company’s proprietary technology that allows the Company to provide the Services, including the Company’s pixel or other script or code, or other mutually agreed upon means.
2. THE BITBOUNCE ADS SERVICE
2.1 The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in a Statement of Work or Product Addendum. If using the services, Client agrees: i) to allow the Company to collect and/or use end-user email addresses that the Client uploads and store it as a persistent part of the Company’s database; ii) such collection and/or usage of email addresses will be Service Data; and iii) the Company may combine such emails with data or emails of other participating customers.
2.2 BitBounce Ads License Grant. Subject to Client’s timely payment of any and all applicable fees and the terms set forth in this Agreement, the Company grants to the Client during the Term of this Agreement the following limited, worldwide, non-exclusive, non-sublicensable, non-transferable rights and licenses for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services.
2.3 Client License Grant. Client grants the Company a non-exclusive, worldwide, royalty-free, sublicenseable and transferable, license to access, use, copy, distribute, reproduce, adapt, modify, perform, display, publish, transmit, format, store, and archive the Client Content for the purpose of providing the Services, supporting Client’s use of the Services, and in promotional materials related to the Services. For Clients requesting the Company’s dynamic creative advertisement services: i) Client agrees that the Company will retain exclusive ownership of any and all underlying techniques, know-how, templates, and design methods; and ii) Client acknowledges that the Company will connect to Client’s website or platform(s) for the purpose of providing the Services.
2.4 Requirements. Client will comply with all requirements for use of the Services communicated by the Company to Client via Documentation or notice, and acknowledges that absent such compliance, the Company may be unable to adequately and/or entirely provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include, but are not limited to, supplying appropriate and Company-compliant Client Content necessary for the Company to provide the Service(s). The Company will have no liability to Client for such inability to provide the Services if such inability is a direct or indirect result of Client’s failure to comply with this Section 2.4.
2.5 Modifications. The Company will host the Services and may update the Services from time to time, as needed and as determined solely at the discretion of the Company, in accordance with this Agreement. If the Company provides Services updates to Client that require action on the Client’s part, Client will integrate the updates within thirty (30) days of such update. The Company may make changes to the Services, including discontinuation of all or part of the Services, at any time, without penalty or liability to Client. The Company will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate this Agreement by providing written notice to the Company informing the Company of Client’s intention to terminate this Agreement.
2.6 Display of Ads. Client can request to work with the Company to manage display preferences when and to the extent such controls are made available to the Client. Client acknowledges that the Company has limited control where and how often Ads will be displayed within the Network and to the public. The Company is committed to providing quality Services, however, at times Ads may be displayed next to ads of Client’s competitors. At all times, Client Content must comply with Documentation and advertising policy requirements or the Company, without liability or penalty, may be unable to provide the Services with respect to such Client Content. The Company retains the authority to remove any Client Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion, without any liability or penalty in so doing. The Company reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies or Documentation, without any liability or penalty in so doing.
2.7 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the Company’s Platform. Client is solely responsible for reviewing any and all applicable terms before participating in any part of the Services to which such terms apply. Client agrees that the Company may accept certain third-party terms and conditions as agent on Client's behalf where necessary for the Company to perform Services requested by Client, for example, terms related to opening a CredoEx account for the Client’s advertising transactions. Links to or copies of any such terms will be provided upon written request from Client. Client hereby expressly authorizes the Company to accept such terms on Client's behalf in order to carry out the Services and agrees and acknowledges that (i) Client will be subject to such additional terms and (ii) the Company shall have no responsibility nor liability in relation to such additional terms.
2.8 Advertising Policy Guidelines. Client will, at all times, adhere to the advertising and company guidelines, as amended from time to time, as needed, as set out by the Company in accordance with any and all policies formulated by the Company, Applicable Law, or applicable Documentation. Client is solely responsible for ensuring that Client Content and Client Sites, as defined below, are fully compliant with these policies. The Company reserves the right to review campaigns and Ads at any given time. The Company’s, and its Network’s, guidelines, policies and self-regulatory bodies’ codes of conduct are constantly being reviewed and updated, and as such, active or approved campaigns may be reviewed in order to ensure that they comply with most current policies, codes, and legal requirements. Failure by Client to remedy non-compliance within thirty (30) days may result in the Company’s pausing or terminating non-compliant Ads or campaigns at any time following the thirty (30) day remedy period, without any liability or penalty in so doing.
3. AGENCY CLIENTS
3.1 Authority, Liability, and Direct Relationship. Where Client is an Agency or Authorized Reseller entering into Services on behalf of their Client(s): (i) Agency or Authorized Reseller represents that it has the authority to act on behalf of such clients with respect to any and all obligations and representations set forth in this Agreement; (ii) upon request, Agency/Authorized Reseller will promptly provide the Company with written confirmation of the relationship between Agency/Authorized Reseller and its client (such confirmation must include the Agency/Authorized Reseller client’s acknowledgment that the Agency/Authorized Reseller is indeed its agent and is authorized to act on its behalf in connection with the Agreement); (iii) upon the request of the Company, Agency will promptly provide the Company with written confirmation that Client has paid to Agency any and all funds sufficient in order to make payments pursuant to this Agreement; (iv) Agency or Authorized Reseller accepts sole responsibility for the actions of its Client Accounts and liability for all expenses incurred through the provision of Services to its Clients, and further assumes sole responsibility for ensuring compliance with and breach of this Agreement by its Clients; (v) except as otherwise set forth hereunder, Agencies or Authorized Resellers will ensure the performance of their respective Client’s obligations under this Agreement and will have joint and several liability in respect of Client’s breach of this Agreement; (vi) Agency or Authorized Reseller Clients may, at any time, request that their Account be migrated to another agency or to a direct Client Account with the Company and nothing in this Agreement will prevent the Company and a Client from entering into a direct relationship; (vii) the Company reserves the right to reasonably object to any Clients at the Company’s sole discretion, without any such liability or penalty in so doing.
3.2 Support and Marketing. Where Client is an Agency or Authorized Reseller: (i) the Company will provide commercially reasonable support during the Company’s normal business hours, but Agency or Authorized Reseller expressly acknowledge that they will be solely responsible for providing support to their Clients in connection with such Clients’ use of the Services; (ii) Agency or Authorized Seller is solely responsible for marketing efforts related to the “go to market” lifecycle for Services; provided that any marketing materials prepared and/or used by Agency or Authorized Reseller are, at all times and in all manners, in compliance with the Company’s policies, guidelines, marketing requirements and other such related Documentation; and (iii) the Company reserves the right to request changes or removal of any Agency or Authorized Reseller materials used to market the Services, without limitation and without any such liability or penalty in so doing.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with the Company is free of charge. Client will choose its login credentials, including a password, for its Account and is solely responsible for any and all activities that occur through its Account or with and in relation to its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify the Company of any breach of security, misuse, or unauthorized use of its Account or credentials. The Company assumes no liability or responsibility as related to or concerning the unauthorized use, breach of security, or misuse of the Client’s Account or credentials.
4.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred because of changes made using Client’s Account will be included in Client's regular bill or invoice. The Company will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Client.
4.3 Campaign Measurement and Tracking. Service fees will be 30% of payments made for Ads delivered through the Platform.
4.4 Campaign Optimization. The Company may optimize toward Client's performance or goals by programmatically using Client Content to create new content, such as, but not limited to, Ads and inserting them into Client's active campaigns, or create, change, or pause campaigns on the Client's behalf, subject to Client's budget. The Company will subsequently notify the Client, within a reasonable period of time, if the Company makes material changes to Client's Campaigns or Ads. In addition to the Company’s optimization services and features, the Company may offer Managed Account Services to Client.
5. PAYMENT TERMS
5.1 Auto-Prepay Accounts. For prepay accounts, Client agrees to keep up-to-date and valid payment method information such as, but not limited to, credit card account information, on file, at all times, in Client's Account and the Company will accordingly pre-charge Client daily or weekly for each campaign or Ad budget amount as determined by Client on the Platform. Client authorizes the Company to charge such amounts using the valid payment details provided by Client. Client understands that all funds transferred to the Company become the sole and exclusive property of the Company upon transfer in order to adequately compensate the Company for any and all costs incurred in delivering and providing the Services, including, without limitation, creating and maintaining and providing access to the Documentation, Network, Platform, Technology, and Campaign Data. If, at any time, Client suspends a campaign or cancels Client’s Account, Client may request reimbursement solely in the amount of the pre-paid funds not yet attributed to any yet-to-be undertaken campaign(s) within sixty (60) days after the campaign is paused or this Agreement is terminated; provided that any such reimbursement is at the Company’s sole discretion, and provided further that once a campaign is undertaken, to any extent, no reimbursement may be transacted except, at Company’s sole discretion, in the form of credit applied to Client’s Account for future Services. Requests for reimbursement made sixty (60) days after the campaign is paused or this Agreement is terminated may not be transacted.
5.2 Auto-Postpay Accounts. For recurring payment accounts, Client agrees to keep up-to-date and valid payment method information, such as, but not limited to, credit card account information, on file, at all times, in Client's Account. Client authorizes the Company to charge recurring amounts due weekly using the valid payment details provided by Client. The Company reserves the right to discontinue the recurring payment services at any time for any reason upon notice, without liability or penalty in so doing. Claims relating to Account charges must be raised by Client within thirty (30) days of receipt or such claims will be permanently barred.
5.3 Statement(s) of Work. The Company may, in its sole discretion, allow the Client to submit an order or Statement of Work requesting Services. The Company reserves the right to request a prepayment and/or prepaid retainer from Client at any time. The Company will send Client a one-time or monthly invoice via email reflecting the amount owed by Client to the Company. The Client will pay the amount specified within each invoice, without set-off, within thirty (30) days of its receipt of such invoice. The Company, in its sole discretion, may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client, within a reasonable period of time, will reimburse the Company for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within thirty (30) days of receipt or such claims will be permanently barred.
5.4 General Payment Terms. Client agrees that Client has all necessary rights, power, and authority to authorize each such payment. For certain payment methods, the issuer of Client's payment method may charge Client a foreign transaction fee or other charges. Client should check with the payment method service provider for details. If Client develops credit conditions including, but not limited to, excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency, or the Company otherwise designates Client as a credit risk, the Company reserves the right to require prepayment for Services rendered. Client agrees to maintain sufficient funds or credit availability, at all times, in Client's payment method to satisfy Client's amounts due and that the Company will have no obligation to provide the Services if sufficient funds are not available at the time Client's payment is submitted, and the Company reserves the right to immediately suspend or terminate the Client's campaigns or Ads due to failed payments or insufficient balance, without liability or penalty in so doing.
5.5 Currency and Taxes. All payments to the Company will be made in Credo or United States Dollars, unless otherwise agreed to in a specific Statement of Work, order, related Documentation, or currency offered through the Platform. Payments are quoted exclusive of any taxes. Client is solely responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state, local, municipal, or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon the Company’s net income.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. BitBounce Ads Materials are the sole and exclusive property of the Company or its third-party licensors, as applicable, and are protected by Applicable Law. Client’s rights to the BitBounce Ads Materials are, at all times and in all manners, limited solely to those rights expressly granted in this Agreement and do not include any other licenses. Client Content is the sole and exclusive property of Client or its third-party licensors as applicable and is protected by Applicable Law. The Company’s rights to the Client Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Client will not, at any time or in any manner, (i) modify the BitBounce Ads Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any BitBounce Ads Materials, unless explicitly and mutually agreed to in writing by the Parties to this Agreement; (iii) sublicense, rent, sell, or lease access to the BitBounce Ads Materials, or use the BitBounce Ads Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the BitBounce Ads Materials; (v) deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the BitBounce Ads Materials, Services and/or Platform ; (vi) use the Platform, BitBounce Ads Materials, and/or Services for any illegal purposes or any purpose other than for their intended purpose; or (vii) make or publish any representations or warranties on behalf of the Company concerning the Services or BitBounce Ads Materials without the Company’s prior written approval. When reproducing BitBounce Ads Materials, Client will, at all times, conspicuously include proprietary rights notices contained on the BitBounce Ads Materials.
6.3 Export Control Laws. BitBounce Ads Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Client must, at all times and in all manners, comply with any and all such regulations and is solely responsible for obtaining any such related or requisite licenses.
6.4 Feedback. Feedback provided to the Company may be used to develop and improve the Service, BitBounce Ads Materials, new products, and Services. To the maximum extent permitted by law, Client grants the Company a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit Feedback without restriction of any kind, extent, or degree.
7. DATA RIGHTS, RESTRICTIONS AND PRIVACY
7.1 Client CRM Data. The Company will only use Client CRM Data for the purpose of providing the Services and it shall be treated as Client Confidential Information. However, the Company may disclose Client CRM Data to third parties solely as required to provide Services to the Client in accordance with the BitBounce Ads Data Processing Addendum. For the purposes of this Agreement and to assist with compliance with Applicable Law, the Company is a data processor and Client is the data controller of the Client CRM Data and the Company shall process such Client CRM Data only in accordance with the BitBounce Ads Data Processing Addendum.
7.2 Service Data and Campaign Data. The Company is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. The Company grants Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.
7.3 BitBounce Ads Data Privacy Responsibilities. If and to the extent Service Data or Campaign Data contain any personal data of individuals located within European Territories, the Company, as the data controller of such data, will process this data in compliance with any and all Applicable Law. The Company will, at all times and in all manners, utilize reasonable efforts in order to cooperate with the Client in responding to regulatory or data subject inquiries received by Client about the Company’s collection and processing of the Service Data or CRM Data containing personal data from individuals located within European Territories.
7.4 Client Data Privacy Responsibilities. Client, at all times and in all manners, will comply with any and all Applicable Laws that relate to individual third-party privacy and publicity rights and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses and, where legally required, obtains consent to its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site, third parties, including the Company, may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and that data collected may be used by third parties, including the Company, in order to target advertising on other sites or applications based on the end users’ online activity); and (ii) informs end users how they may opt-out from receiving targeted advertisements that may include links to visiting the NAI website opt-out page (http://www.networkadvertising.org/choices/), the DAA opt-out page (http://www.aboutads.info/) or, for end users located within European Territories, the EDAA opt-out page (http://youronlinechoices.eu/). Client will only send personally identifiable information or personal data to the Company through means specified and consistent with the Company’s instructions or Documentation.
7.5 Notice and Consent Collection Mechanism. Client agrees that in order for the Company to comply with Applicable Law in providing the Services, Client may be required to host a notice and consent collection mechanism on its website that provides the Company and members of its Network with consent to the placing of cookies on end users' browsers. If Client fails to implement this mechanism either as a feature of the Company’s Services or through its own similar mechanism, subject to the Company’s approval of any such Client provided mechanism, then the Company may not be able to adequately and/or entirely perform the Services under this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE COMPANY WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL FULLY INDEMNIFY, DEFEND AND HOLD THE COMPANY HARMLESS WITH RESPECT TO: (A) CLIENT’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS PRIVACY PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW, (B) THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT, OR (C) DATA SECURITY OR DATA USE IF THE COMPANY ACTS IN ACCORDANCE WITH THE CLIENT’S INSTRUCTIONS.
8.1 By Client. Client represents and warrants to the Company that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Client Content and the Client websites, mobile or tablet applications (the "Client Sites") do not include, and does not give access via hyperlinks to any property containing, materials that are obscene, defamatory or contrary to any Applicable Law; (iii) Client Content and Client Sites comply at all times and in all manners with the Documentation including, but not limited to, the Company’s guidelines and policies, as amended, from time to time, and Applicable Laws in all jurisdictions where Client Ads and Client Sites are viewed; (iv) Client Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (v) the Client Content does not infringe upon or misappropriate the rights of any third party; and (vi) the collection, transfer, use and disclosure of Service Data or Client CRM Data in accordance with this Agreement will not violate the rights of any third party, including any customer of the Client, or any statements in its own posted privacy notice or similar privacy statement.
8.2 COPPA Compliance. In accordance with the Children’s Online Privacy Protection Rule (COPPA), Client represents and warrants that it will not place the Company’s pixel, materials, content, or any such related items on any website that is directed, either in whole or in part, to children under the age of thirteen (13), and that it will not knowingly send to the Company any information derived from children under the age of thirteen (13).
8.3 By BitBounce Ads. The Company represents that: (i) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (ii) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 8.3, the Company’s sole liability and Client’s sole remedy will be the re-performance of the Services by the Company, within a reasonable period of time, or Client’s termination rights under Section 11.
8.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, THE “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND MATERIALS MADE AVAILABLE BY THE COMPANY UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) THE COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, (B) THE COMPANY DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, AND (C) THE COMPANY MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH USE OF THE SERVICES.
9.1 Client Indemnification. Client will defend, indemnify, and hold harmless the Company and its officers, directors, employees, agents, contractors, subsidiaries, and any such related parties from and against all liabilities, damages and costs, including, but not limited to, the settlement costs and reasonable attorneys’ fees, arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right including, but not limited to, intellectual property, property, privacy or publicity rights by Client, the Client Content, or Client CRM Data.
9.2 BitBounce Ads Indemnification. The Company will defend, indemnify, and hold harmless Client and its officers, directors, employees, agents, contractors, subsidiaries, and any such related parties from and against all liabilities, damages and costs, excluding any settlement costs and attorneys’ fees, arising out of any claim by a third party regarding any direct and intentional violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the BitBounce Ads Materials, but excluding any software incorporated into the Company's software under an open source license. In no event will the Company have any liability under this Section 9.2 arising from (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the BitBounce Ads Materials with any third-party software, process, or service not provided by the Company. The Company’s indemnification obligations in this Section 9.2 will be the Company’s sole liability and Client’s sole remedy for any claims that the Services or Materials violate, infringe upon, or misappropriate any intellectual property right.
9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed, and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
10. LIMITATIONS ON LIABILITY
10.1 Disclaimer of Indirect Damages. THE COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF THE COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE COMPANY’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO THE COMPANY UNDER THIS AGREEMENT WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM, AS DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION.
10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION
11.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while Client utilizes the Services and will terminate upon written notice of cancellation of Client’s Account by the Company or Client (the “Term”), such termination to take effect forty-eight (48) hours from receipt of such termination notice or at such other designated and mutually agreed upon time.
11.2 Post-Termination Obligations. Upon termination of this Agreement (i) the Company will immediately cease providing the Services and permitting access to the Platform to Client; (ii) Client will within thirty (30) days’ time pay to the Company any and all fees that have accrued prior to the effective date of termination, inclusive of any interest incurred in the event that such fees are past due. Provided that Client is not in breach of the Agreement, subject to Section 5, the Company may, in its sole discretion, refund or credit back to Client any amounts prepaid for Services that were not yet undertaken prior to termination. However, in the event that the Client is in breach of any terms of this Agreement, Client will not be entitled to a refund or credit by the Company. The following Sections will survive expiration or termination of this Agreement: Sections 1, 6-10, 11.2, 12-13, and 15-16.
11.3 Insolvency. The Company may immediately terminate this Agreement and move Client to prepay pursuant to Section 5 in the event that (a) Client (i) fails to satisfy any enforceable, final and material judgment against it, (ii) fails to pay its fees as they become due, or (iii) enters into or is the subject of an insolvency, receivership, or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts or (b) a court appoints, or Client makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in Title 11 of the United States Code) for Client or all or substantially all of its assets. Client acknowledges that the Company may set off any liability owed to Client against any liability for which the Company determines Client is liable to the Company related to Services under this Agreement. In the event that an Agency, but not the Agency’s applicable client, enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts, the Company shall have the right, but not obligation, without liability or penalty, to notify Client directly in an effort to settle outstanding liabilities under this Agreement.
Each Party to this Agreement retains all right, title, and interest to its own logos and trademarks. The Company’s logos and names are trademarks of Turing Technology, Inc. All other trademarks and product or company names mentioned in the Services or BitBounce Ads Materials are the property of their respective owners, being either the Client (or such other specified individual or entity) or Turing Technology, Inc., and such trademarks may not be used without the prior written permission of the owner. Reference to any products or services by name or otherwise does not imply endorsement by the Company. Notwithstanding the foregoing, the Company may use Client’s logos, name, and any trade names to (a) perform the Services contemplated by this Agreement and (b) indicate in promotional materials that Client is a client of the Company’s Services. All goodwill derived from the use of any trademarks will inure to the benefit of the respective trademark owner.
Confidential Information includes any and all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary, or trade secret information of the Disclosing Party. Confidential Information does not include information that: (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 13; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent, but using no less than a reasonable degree of care, that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice, except where and when prohibited by law, of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 13 will survive termination of this Agreement in perpetuity or until such Confidential Information becomes the part of the public domain through no act or omission of the Receiving Party. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
The Client may assign this Agreement upon thirty (30) days written notice to the Company after the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Any other attempt to transfer or assign is void. The Company retains the rights to assign this Agreement and delegate any or all of its obligations hereunder. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
15. RESOLVING DISPUTES: FORUM, ARBITRATION, CLASS ACTION WAIVER, AND GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
15.1 Contact BitBounce Ads First. In all instances of a dispute, the Company wants to address the Client's concerns without resorting to formal legal proceedings. Before filing a claim, the Client agrees to try, in good faith, to resolve any and all disputes informally by contacting the Company first through [email protected].
15.2 Forum. The Client and the Company agree that any judicial proceeding(s) to resolve claims relating to this Agreement or the Services will be brought within the federal or state courts located within San Mateo County, CA, subject to the mandatory arbitration provisions below. Client and the Company hereby expressly consent to venue and personal jurisdiction in such courts.
NOTICE: U.S. RESIDENTS HEREBY ALSO EXPLICITLY AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
15.3 Arbitration Both Parties hereby expressly agree to binding arbitration. The Client and the Company agree to resolve any and all claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
- Arbitration Procedures. The American Arbitration Association (the “AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held within the United States in accordance with the venue specified in Section 15.2.
- Arbitration Fees and Incentives. The AAA rules will govern payment of any and all arbitration fees.
15.4 Class Action Waiver. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement, such as with respect to their validity and/or enforceability, the BitBounce Ads Materials, or any Services provided by the Company will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
15.5 Controlling Law. This Agreement is governed by the laws of the state of California except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.
16.1 Amendments. The Company reserves the right to revise this Agreement, from time to time, and Client’s rights and obligations are at all times subject to the most recent iteration of the Agreement then posted at the Company’s principal website. Client’s continued use of the Service(s) constitutes acceptance. The Company will also endeavor to notify and give Client an opportunity to review and accept the revisions to the Agreement, which acceptance may be manifested in electronic form, such as, but not limited solely to, a click-through agreement or continued use of the Service(s) following notice of the revisions to the Agreement provided to the Client. However, subject to applicable law, the inability to contact Clients through a valid email address regarding the revised Agreement and obtain express acceptance in no way limits the revised Agreement’s effectiveness and application.
16.2 Independent Parties. The Company is an independent contractor and not an agent of the Client in the performance of this Agreement. This Agreement is not to be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third-party beneficiaries, except the indemnities referenced in Section 9.
16.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding use of the Services and will supersede all prior agreements between the Parties, whether written or oral. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
16.4 Force Majeure. The Company will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond the Company’s reasonable control.
16.5 Use of Third Parties. Subject to Section 13, the Company may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf.
16.6 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
16.7 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
16.9 Notice. All notices to the Company must be delivered in writing by courier, certified or registered mail, with postage prepaid and return receipt requested, electronic mail, or as otherwise specified by the Company. Legal notices to the Company must be sent to [email protected] with a copy to BitBounce LLC, Attn: Legal, 55 E. 3rd Avenue, San Mateo, CA 94401, U.S.A. Notices to Client will be sent to the Client Account email address on file and are deemed effective when sent.