Terms & Conditions
Last Modified: February 10, 2023
These Terms of Service and any terms expressly incorporated herein (together, the “Agreement”) apply to any access to, or use of, any Services, as defined herein, made available by AdPipe, Inc., a Delaware corporation, together with its subsidiaries and affiliates (“AdPipe”, “we”, “us” or “our”). For the purposes of this Agreement, the terms “Customer”, “you”, “your”, “yourself” and “User” means you as the user of the Services. Additionally, you and Company may be referred to herein together as the “Parties”, and each may be referred to individually as a “Party”.
For the avoidance of doubt, if you are accessing or using the Services on behalf of a business or entity, then the term “Customer” includes you and that business or entity. Additionally, you (a) represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to this Agreement, and that you agree to the Agreement on the entity’s behalf, and (b) you understand and acknowledge that your business or entity is legally and financially responsible for your access or use of the Services as well as for the access or use of your account by others affiliated with your entity, including any employees, agents or contractors.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THIS AGREEMENT, AND YOU MUST NOT ACCESS, OR USE THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE SERVICES IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT IN THEIR ENTIRETY.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE IN WHICH YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.
1. Definitions. In addition to the terms otherwise defined in this Agreement or an Order Form, the following terms have the definitions below:
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“API” means an application programming interface.
“Customer Content” means any Customer content, data, information, or material that is uploaded to, recorded by, submitted to, hosted on, or stored by, the Services, including, but not limited to, GIFs, MP4s, and Personal Data processed by AdPipe on behalf of Customer.
“Deliverables” or “AdPipe Assets” means the tangible or intangible work product(s) AdPipe will provide to Customer and/or Customer will produce, generate, or create using the Platform, as described in an Order Form.
“Documentation” means documentation that is provided to Customer or Users that describes the then-current specifications, functions, and features of the Services, Platform, or Deliverables (including operating manuals, user guides, and any other documentation that AdPipe generally makes available to its customers or specifically makes available to Customer and also including any modifications), in any form.
“Fees” means the fees as set forth in the applicable Order Form, including any pre-approved expenses incurred by AdPipe.
“Intellectual Property” means the property of a Party that is protected in any manner by Intellectual Property Rights.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; (f) integrated circuit layouts, mask works, topographies and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.
“Law” means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to such Person.
“Order Form” means the ordering document in the form of a statement of work or an order form, specifying the Services to be provided by AdPipe to Customer, including any addenda and supplements thereto, and the material terms related thereto.
“Person” means any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.
“Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person. This includes any information that is deemed “personal information” or “personal data” (as defined by applicable data protection Laws).
“Platform” means the content, features, functionality, tools, data, and software applications provided by AdPipe via https://AdPipe.com and/or such other designated websites as described in the Documentation provided by AdPipe to Customer as described in an Order Form, as updated from time to time.
“Pre-Existing Intellectual Property Rights” means any and all Intellectual Property Rights in any Intellectual Property, including, but not limited to, certain graphics, animations, and source files AdPipe may provide to or create for Customer, owned by AdPipe prior to the Effective Date.
“Professional Services” means the consulting, onboarding, implementation, training, integration, enhancement, configuration, and other services as applicable provided by AdPipe pursuant to an Order Form.
“Services” means the Platform, Deliverables, and other services that AdPipe will provide to Customer, as described in an Order Form and this Agreement.
“Third Party” means any Person who is not AdPipe, Customer, or a User.
“Updates” means repairs, enhancements, or the addition of new features to the Platform by AdPipe, including updates to the Documentation as a result of such updates, at no additional cost to Customer during the Subscription Term. Updates shall not include additional new functionality or upgrades to modules or applications that Customer has not already subscribed to in an Order Form and for which AdPipe requires a separate charge from its other customers generally for such new modules or applications.
“Users” means individuals who are authorized by Customer to use the Services, for whom Subscriptions to the Services have been purchased under an Order Form, and who have been supplied user identifications and passwords by Customer (or by AdPipe, at Customer’s request). Users may include Customer’s employees, consultants, contractors, agents, or Third Parties with which Customer transacts business.
2.1 Platform Services.
(a) During the Term, and as set forth in one or more Order Forms, AdPipe will provide Customer and its Users with remote access to the Platform. During the Term, and subject to compliance with this Agreement, AdPipe grants to Customer a worldwide, non-exclusive, non-transferable, non-assignable (except as provided herein), and limited right and license to allow Users to remotely access the Platform for Customer’s own internal business purpose. Customer’s Affiliates may purchase and use the Services subject to the terms of this Agreement by executing Order Forms hereunder that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer will be deemed to refer to such Affiliate for purposes of such Order Form(s).
(b) Customer acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, the AdPipe infrastructure is designed to support updates by the AdPipe engineering and support teams without the need to interrupt the Services. Where such maintenance activities are not reasonably anticipated to materially impact Customer’s use of the Services, AdPipe will have no obligation to provide notice to Customer regarding such maintenance activities. AdPipe will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
(c) In accordance with the requirements set forth in the Documentation, Customer must have the required equipment, software, and Internet access to be able to use the Services. Acquiring, installing, maintaining, and operating equipment and Internet access is solely Customer’s responsibility, except as otherwise expressly provided in an Order Form. AdPipe neither represents nor warrants that the Services will be accessible through any particular Internet browser or through all versions of tablets, smartphones, or other computing devices, except as expressly set forth on any applicable Order Form.
(d) AdPipe may, at its sole discretion, make certain services available to Customer on a test basis which will be clearly designated as beta, pilot, limited release, non-production, or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, Customer acknowledges and agrees that Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. AdPipe does not guarantee that future versions of Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. AdPipe may terminate Customer’s right to use Beta Release at any time for any reason. If AdPipe publicly releases Beta Release, Customer may execute, if required, a separate Order Form to procure the relevant Services (being the publicly available version of the Beta Release) at then-current applicable fees.
2.2 Professional Services.
(a) If Customer requests and AdPipe agrees, AdPipe may provide Professional Services to Customer pursuant to the terms of one or more written Order Forms. Each such Order Form will include, at a minimum, (i) a description of the Professional Services; (ii) the fees, costs, and expenses payable to AdPipe; (ii) the payment schedule; and (iv) a signature by each Party’s respective authorized representatives. AdPipe has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all Professional Services to be performed by AdPipe hereunder unless otherwise provided in the applicable Order Form.
(b) Customer agrees to cooperate with AdPipe and provide AdPipe access to complete and accurate information and data from its officers, agents, and employees; office accommodations and facilities; equipment assistance; and suitably configured technology products in a timely fashion and as reasonably required by AdPipe to perform its duties hereunder (if and to the extent applicable). Customer agrees that such cooperation, performance of its responsibilities hereunder and provision of information, data, accommodations and facilities, equipment assistance, and technology products are essential to AdPipe’s ability to perform the Professional Services and that AdPipe shall be entitled to rely on Customer’s decisions and approvals in connection with the Professional Services. To the extent that the Professional Services require AdPipe to access or use any Third Party products provided by Customer, Customer represents and warrants that it shall have all rights and licenses of Third Parties necessary or appropriate for AdPipe to access or use such Third Party products and agrees to produce evidence of such rights and licenses upon the reasonable request of AdPipe and to indemnify, defend and hold harmless AdPipe and its licensors from and against any claims, actions, demands, lawsuits, damages, liabilities, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising from AdPipe’s access to or use of such Third Party products.
(c) If any relevant requirements, project plans, schedules, scopes, specifications, designs, Platform, hardware products, or related system environments or architecture that are either set forth in an Order Form or otherwise necessary to perform the Professional Services are changed by Customer or any other person not authorized by AdPipe, AdPipe shall not be responsible for the change or the completion of Professional Services affected by the change unless Customer and AdPipe specifically consent to the change, scheduling, and additional charges, if any, in writing.
(d) All timelines for delivery of any Professional Services as detailed in any applicable Order Form are understood to be estimates for delivery of the Services indicated. Furthermore, such timelines are not additive, and some Professional Services may be delivered in tandem. AdPipe will work with Customer to establish mutually agreed timelines at the onset of any Professional Services engagement.
2.3 Support Services. AdPipe’s standard support services obligations and help desk services shall be subject to AdPipe’s Technical Support Agreement and are generally provided on an ‘as available’ basis, via email and telephone during its normal business hours (typically 9:00am – 5:00pm U.S. Eastern Time, Monday through Friday, excluding holidays). Unless a separate support agreement is entered into by AdPipe and Customer, for additional consideration, and reflected on an Order Form, AdPipe will provide customer support services, in accordance with the Technical Support Agreement.
2.4 Additional Services. Through the Services, Customer may have the ability to purchase additional AdPipe products and offerings (collectively, the “Additional Services”). The delivery of and Fees for the Additional Services will be as set forth in the applicable Order Form(s). Customer must have an active Subscription to the Services in the Order Form to access the Additional Services.
2.5 Third Party Providers. Customer acknowledges and agrees that AdPipe may engage Third Parties (“Third Party Providers”) to assist it in providing the Services to Customer. If AdPipe engages any Third Party Providers, AdPipe will be responsible for ensuring that such Third Party Providers comply with the terms of this Agreement in their provision of goods and/or services (including any portion of the Services) to Customer.
3. Use of Customer Content
3.1 Customer Content.
(a) Customer shall be solely and exclusively responsible for Customer Content that it utilizes in conjunction with its use of the Services and AdPipe has no responsibility for verifying or maintaining the same (all of which shall be sole responsibility of Customer). Accordingly, Customer is solely and exclusively responsible for ensuring that (i) it has all of the rights, licenses, and privileges that are required for all Customer Content that it uploads, posts, publishes, transmits, or otherwise makes available through the use of the Services (whether such content is utilized by/for Customer itself, by its Users, or by/for its customers or Third Parties), and (ii) no portion of the Customer Content is unlawful or infringes upon the rights of any Third Party. At no time shall AdPipe be responsible for the accuracy, availability, correctness, timeliness, or any other quality of or concerning Customer Content that the Customer uploads to, utilizes, or that is transmitted through, the Services, or otherwise provides to AdPipe. Further, AdPipe shall have the right, in its sole discretion, to restrict, limit, or reject the posting, publication, use, storage, or transmission of any Customer Content via the Services and to remove any Customer Content that has previously been uploaded or transmitted, if AdPipe reasonably believes that such Customer Content or the Customer’s use thereof is in violation of the terms of this Agreement or the Law. AdPipe is not responsible for any changes, additions, or deletions to Customer Content made by Customer or its Users.
(b) Customer hereby grants to AdPipe a worldwide, royalty-free license, during the Term, to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit Customer Content, but only for the limited purposes of providing the Services to Customer pursuant to the terms of this Agreement.
(c) If and to the extent that Customer Content contains (i) any communications between Customer and other customers of AdPipe; (ii) requests for proposal and/or responses; (iii) transactional information in connection with Customer interactions with the Services; and (iv) other content of a similar nature (collectively “Transactional Information”), Customer hereby grants to AdPipe a worldwide, royalty-free, fully paid up, perpetual, and irrevocable license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit such Transactional Information during the Term and after the termination of this Agreement for any reason. For clarity, this Section and the definition of Transactional Information shall not apply to any Confidential Information.
3.4 Security. AdPipe’s Security Program contains all written information relating to AdPipe’s security program of policies, procedures, and controls governing the processing, storage, transmission, and security of Customer Content as of the Effective Date. The Security Program shall include industry standard practices designed to protect Customer Content from unauthorized access, acquisition, use, disclosure, or destruction. AdPipe may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein.
3.5 Breach Notification. AdPipe shall report to Customer’s support contacts designated in AdPipe’s customer support portal (“Support Portal”) the accidental or unlawful alteration, unauthorized disclosure of, or access to Customer Content (“Breach”) within forty-eight (48) hours, after AdPipe determines that a Breach has occurred, unless a different timeframe is prescribed by Law or unless restricted by Law. Accordingly, AdPipe shall share information about the nature and consequences of the Breach that is reasonably requested by Customer to enable it to notify affected individuals, government agencies and/or credit bureaus. Customer has sole control over the Customer Content that it enters into the Subscription Service and is solely responsible for determining whether to notify impacted individuals and the applicable regulatory bodies or enforcement commissions and for providing such notice. Customer shall ensure that the support contacts designated in AdPipe’s customer Support Portal be current and ready to receive any Breach notification from AdPipe.
4.1 Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has Confidential Information relating to Disclosing Party’s business which it has disclosed or may disclose during the Term of this Agreement. AdPipe’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services, as well as all user visible aspects of the Services. Customer’s Confidential Information includes information provided by Customer to AdPipe to enable the provision of the Services as well as all Customer Content. The terms and conditions of this Agreement, including all pricing and related metrics, are each Party’s Confidential Information. As used in this Agreement, the term “Confidential Information” means any information about business operations and strategies, research, goods and services, customers, pricing, financial, marketing and other information proprietary to the Disclosing Party including, but not limited to, the Disclosing Party’s inventions, processes, specifications, designs, drawings, diagrams, concepts, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by the Disclosing Party, either directly or indirectly, in any form. For clarity, Aggregations, risk scores, and other information and data created or compiled by AdPipe shall be deemed Confidential Information for the purposes hereof.
4.2 Non-Use. Receiving Party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own most important confidential information. Receiving Party agrees (a) not to use any Confidential Information of Disclosing Party for any purpose except to perform its obligations or exercise its rights under this Agreement and (b) not to disclose any Confidential Information of Receiving Party to Third Parties or to such Party’s employees, officers, agents, contractors or other representatives (the “Personnel”), except to those Personnel of Receiving Party who need or have access to such Confidential Information in Order Form to perform works in connection with this Agreement and are subject to confidentiality obligations consistent with those of this Agreement.
4.3 Exceptions. Disclosing Party agrees that these confidentiality obligations will not apply to any information that Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from Disclosing Party; (c) was rightfully disclosed to it without restriction by a Third Party; and/or (d) was independently developed without use of any Confidential Information of Disclosing Party. Nothing in this Section 4 precludes either Party from disclosing the other Party’s Confidential Information as required by Law or a legal process, provided that such Party (i) gives the other Party prior written notice sufficient to permit the other Party to contest the disclosure or seek a protective Order Form (or other confidential treatment) and (ii) reasonably cooperates with the other Party in limiting the disclosure. In addition, a Party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to any or all of the following: (A) potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers, solely in connection with the due diligence review of such Party by persons and provided that the disclosures are made in confidence, (B) the Party’s outside accounting firm, or (C) the Party’s outside legal counsel.
4.4 Return of Confidential Information. Promptly following the earlier of (a) the expiration or earlier termination of this Agreement, or (b) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or destroy all Confidential Information that is in written, electronic, or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, or computer memory, whether or not prepared by Receiving Party) to the extent containing or summarizing any portion of the Confidential Information, including, without limitation, all copies and extracts of such Confidential Information. In addition, upon the request of Disclosing Party, Receiving Party will certify to Disclosing Party in writing Receiving Party’s and its Personnel’s compliance with its obligations pursuant to this Section 4. Notwithstanding anything to the contrary in this Agreement, AdPipe may retain Confidential Information after termination of this Agreement for such period of time agreed to by Customer and AdPipe. To the extent either Party is required by Law to maintain copies of Confidential Information or records related to disclosure or handling, that Party will be under no obligation to destroy such information, however it will remain subject to the obligations in this section.
4.5 Equitable Remedies. Receiving Party acknowledges that in the event of a breach of this Section 4 by Receiving Party, substantial injury could result to Disclosing Party and money damages will not be a sufficient remedy for such breach. In the event that Receiving Party engages in or threatens to engage in any act which violates any provision of this Agreement, Disclosing Party will be entitled, in addition to all other remedies which may be available to it under the Law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
5. Customer Account; Customer Obligations.
5.1 Technical Requirements. In accordance with the requirements set forth in this Agreement, Customer must have the required equipment, software, and internet access to be able to use the Services. Acquiring, installing, maintaining, and operating equipment, any Customer software, and internet access is solely the Customer’s responsibility. Internet access is not included in the Services purchased from AdPipe, and the Customer is responsible for the appropriate internet access with the service provider of its choosing. AdPipe cannot be held responsible for any malfunction of the internet, the internet browser or browser extension, or any antivirus protection system installed by the Customer.
5.2 Account Activation. AdPipe will provide Customer with an AdPipe account in order to use the Platform. Customer is fully responsible for all activities performed on, with or through their account, including all activities of its Users. Customer agrees that it will, and will inform each User that it shall: (a) provide true, accurate, current and complete information as prompted by the registration form in the Platform (the “Registration Data”), (b) maintain and promptly update the Registration Data to ensure the information is true, accurate, current and complete, (c) promptly, and without undue delay, inform AdPipe of any confirmed or reasonably suspected unauthorized use of an account or any other breach of security, and (d) endeavor to exit from the account at the end of each work session. AdPipe undertakes no obligation to verify the Registration Data provided by Customer or its Users. If Customer breaches subsection (c) above, AdPipe may, upon reasonable notice and opportunity to cure, suspend Customer’s or any User’s account and refuse any and all current or future use of the Services (or any part of them), until such condition is remedied to AdPipe’s reasonable satisfaction.
5.3 Password Confidentiality. Each User that uses the Platform must choose a password when registering. Customer will inform such Users of their obligation to maintain the confidentiality of the passwords. AdPipe does not retain the technical ability to retrieve User passwords, and Users will need to follow the steps to reset its password if lost or forgotten. Customer is fully responsible for all activities that occur using Customer’s password, and each User shall be fully responsible for all activities that occur using their password. Customer acknowledges and agrees that AdPipe shall not be liable for any loss that Customer or any User may incur as a result of someone else using a password that has been assigned to or obtained by Customer or its Users, either with or without the knowledge of Customer or the applicable User; nor shall AdPipe be liable or responsible for any unauthorized access or misuse of the Platform by Customer or any of its Users. Customer agrees that it will promptly notify AdPipe of any violation or suspected violation of this Agreement or any actual or suspected data or security breach.
5.4 User Accounts. In relation to the Users, Customer undertakes that: (a) it will not direct or knowingly permit any user Subscription to be used by more than one individual User concurrently (b) when requested by AdPipe, it will produce (without undue delay) the up to date list of current Users available within the Platform; and (c) if any compliance verification procedures reveal that any password has been provided to any individual who is not an authorized User, then, without prejudice to AdPipe’s other rights, Customer shall promptly disable such passwords.
5.5 Use Restrictions.
(a) Except as permitted under this Agreement or as required by Law, Customer will not, and will not permit or encourage anyone else, to:
- (i) license, sublicense, sell, resell, transfer, assign, distribute, use as a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any Third Party in any way;
- (ii) modify, disassemble or make derivative works based upon the Services or otherwise attempt to derive source code or other trade secrets from the Services;
- (iii) reverse engineer or access the Services to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions, or graphics of the Services, or (C) copy any ideas, features, functions or graphics of the Services;
- (iv) modify, remove or obstruct any proprietary rights statement or notice contained in the Services;
- (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- (vi) send or store (A) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates Third Party privacy rights; or (B) material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- (vii) attempt to gain unauthorized access to the Services or its related systems or networks;
- (viii) access the Services if Customer is a direct competitor of AdPipe, unless AdPipe agrees in writing before Customer accesses the Services; or
- (ix) post or create any images or any materials in association with pornographic, defamatory, or obscene images while utilizing the Services.
(b) AdPipe reserves the right to review information posted by Users to ensure that it complies with this or any other section of this Agreement, and to amend it or delete it, or otherwise control such information in Order Form to bring it into compliance with this Agreement and/or applicable Law.
5.6 Suspension for Compliance and Security Concerns. Both Parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under this Agreement including data protection laws. To the extent any Users are under the age of eighteen (18), Customer represents and warrants that it is responsible for obtaining any additional consents as required by applicable Law. Customer will notify AdPipe, promptly and without any undue delay, of any discovered unauthorized use of the Services or any other breach of security that is known or reasonably suspected by Customer. AdPipe may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by Customer of any obligation contained in this Sections 5, until such violation ceases, and AdPipe receives reasonable assurances that such violation will not continue. Any use of the Services in violation of the Agreement by Customer that, in AdPipe’s reasonable judgment, threatens the security, integrity, or availability of AdPipe’s services or that of its other customers, may result in AdPipe immediately suspending the Services; however, AdPipe will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
5.7 Instructions from Users. Customer acknowledges and agrees that, in connection with any Services provided herein, AdPipe shall have the right to take instructions from, and rely upon information provided by, any Administrative User. Such instructions may include, for example, the commissioning or decommissioning Users or the purchase of additional Services or Subscriptions.
6. Third Party Content.
6.1 Third Party Data. AdPipe has developed the Platform and Services that enable Customers to create their own custom .GIF and .MP4 content by providing Customers with a library of audio visual imagery and content as well as content editing software designed for enhancing Customer’s marketing needs. To provide the Services, AdPipe utilizes data from Third Parties. As such, the Services display information and materials (the “Third Party Data”) that are provided by Third Parties that is not owned by AdPipe. Accordingly, the Third Party Data is the sole responsibility of the entity that provides the information and the entity that makes the information available to AdPipe.
6.2 Third Party Resources. In the course of providing the Services, AdPipe may publish, communicate, or otherwise provide certain content or links to websites, applications, or other materials created, provided, and maintained by Third Parties (“Third Party Materials”). AdPipe has no responsibility for reviewing or verifying any Third Party Materials and is not responsible therefor. Trademarks of Third Parties displayed in conjunction with the Services are the property of their respective owners.
6.3 Content Disclaimers. ADPIPE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER ABOUT ANY CUSTOMER CONTENT,THIRD PARTY DATA, THIRD PARTY MATERIALS, OR AGGREGATIONS, THAT MAY BE AVAILABLE TO CUSTOMER THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING WITHOUT LIMITATION, ACCURACY, COMPLETENESS, AVAILABILITY, OR TIMELINESS THEREOF), AND EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER, INCLUDING, BUT NOT LIMITING TO, THIRD PARTY INTELECTUAL PROPERTY INFRINGEMENT CLAIMS, THAT MAY ARISE OUT OF THE ACCESS, USE, TRANSMISSION, OR RELIANCE BY CUSTOMER OF ANY CUSTOMER CONTENT, THIRD PARTY DATA, THIRD PARTY MATERIALS, OR AGGREGATIONS. ANY AND ALL SUCH THIRD-PARTY PRODUCTS AND/OR SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS.”
7. Intellectual Property Ownership.
7.1 For AdPipe. Except for the limited right to access and use the Services under this Agreement and the applicable Order Form during the Term, Customer acknowledges and agrees that, as between the Parties, AdPipe (or its licensors) have and will retain any and all rights, title, and interest in the Services and all derivative works made by any person or entity in or to the Services, including, but not limited to any Intellectual Property Rights associated with the Services (expressly including the Platform). Customer will not assert or cause any other Party (including, without limitation, any User) to assert any right, title, or interest in or to the Services or other portion of AdPipe’s Intellectual Property Rights. This Agreement is not a sale and except as set forth in this Agreement, does not give Customer any rights of ownership in, or related to, the Services, any AdPipe Platform, or the Intellectual Property Rights owned by AdPipe.
7.2 For Customer. Except as set forth in this Agreement, this Agreement does not give AdPipe any rights of ownership in, or related to, any Intellectual Property Rights owned by Customer.
(a) The Parties acknowledge and agree that all Deliverables created using the Platform and/or the Services, except for AdPipe’s Pre-Existing Intellectual Property or any Third Party Data, will be owned by Customer, and AdPipe assigns all right, title, and interest in such Deliverables to Customer. If applicable Law prevents AdPipe from transferring ownership to Customer, AdPipe grants Customer an exclusive, fully-paid, irrevocable, perpetual, royalty-free, transferrable, worldwide license (with a right to sublicense) to reproduce, prepare derivative works from, distribute, publicly perform, publicly display, use, make, offer for sale, sell, import, export any component of, modify, transmit, and dispose of such Deliverables. If applicable Law prevents future assignments, AdPipe will assign such rights as they are created. AdPipe will disclose in writing all Deliverables to Customer, at Customer’s request. If any portion of Deliverables qualifies as a work-made-for-hire under applicable Law, Customer, or a Customer-selected designee, will exclusively own title to such portion.
(b) If any Pre-Existing Intellectual Property Rights or related rights are incorporated in or necessary to use any Deliverable, AdPipe grants to Customer and its Affiliates a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license (with the right to sublicense) to reproduce, prepare derivative works of, distribute, publicly perform, publicly display, make, use, and import such Pre-Existing Intellectual Property Rights or related rights. However, Customer shall not license, sub-license, resell, transfer, or make other commercial use of the Pre-Existing Intellectual Property, or any portion thereof, without AdPipe’s prior written consent. Notwithstanding the foregoing, AdPipe is not providing Customer with any license or right to use the Platform or other Third Party Platform used by AdPipe to create the Deliverables or other Intellectual Property developed in connection with this Agreement.
(c) If any Third Party Data is incorporated in or necessary to use any Deliverable, AdPipe grants Customer a revocable, non-exclusive, royalty-free, fully-paid, limited license, solely during the Term hereof, to reproduce, prepare derivative works of, distribute, publicly perform, publicly display, make, use, and import such Third Party Data or related rights.
7.4 Feedback. Customer may, but is not obligated to, provide suggestions, enhancement requests, recommendations, or other feedback to AdPipe relating to AdPipe’s Platform, the Services, or business operations (“Feedback”). To the extent Customer provides Feedback, Customer grants AdPipe a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any such Feedback into its Platform, the Services, or its business operations.
8. Payment of Fees.
8.1 Subscription. Some of the Services are offered and provided to Customer on a subscription basis (the “Subscription”). Each Subscription purchased by Customer shall be determined based upon the number of Deliverables authorized to be commissioned using the Platform and/or Services, commencing on the start date set forth in the Order Form (the “Subscription Start Date”) and continuing until the number of commissioned Deliverables has been reached or exceeded as set forth in the Order Form (the “Subscription Period”), unless earlier terminated in accordance herewith.
8.2 Fees. AdPipe will invoice Customer for Fees that correspond to Customer’s Subscription to the Services as set forth in the corresponding Order Form. All Fees are payable in U.S. dollars unless otherwise set forth in the applicable Order Form.
8.3 Expenses. Customer agrees to reimburse AdPipe for all reasonable expenses incurred by AdPipe in accordance with the applicable Order Form only if such expenses have been pre-approved in writing by Customer or are set forth in the applicable Order Form.
8.4 Payment. Timing for Customer’s payment of Fees (the “Billing Cycle”) will be set forth in the corresponding Order Form. Unless otherwise set forth in the Order Form, Fees in connection with Customer’s Subscription will initially be due and payable on or before the beginning of the Subscription Period and subsequently, on the same day of the following month, quarter, or year, as applicable, in accordance to Customer’s Billing Cycle (the “Billing Date”). All Fees must be paid by Customer before AdPipe shall be required to provide Customer with access to the Services.
8.5 Payment Disputes. Customer agrees to notify AdPipe within fifteen (15) days after receipt of an invoice (the “Dispute Period”) if it believes, in good faith, that there is a discrepancy in the amount of the Fees or any other amounts invoiced by AdPipe. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. Customer agrees that it will pay all amounts not subject to the dispute hereunder. If Customer does not provide AdPipe with notice of dispute during the Dispute Period, all Fees and other amounts shall be deemed accepted by Customer.
8.6 Late Payment. All amounts due hereunder (except for those that are subject to a bona fide dispute pursuant to Section 8.5) not paid within five (5) days following the Billing Date shall be deemed past due (“Past Due Amounts”). The outstanding balance of Past Due Amounts will be charged a fee of one and one-half percent (1.5%) of the outstanding balance per month, or the highest amount allowed by Law, whichever is lower.
8.7 Fee Rate Changes. AdPipe reserves the right to change the Fees charged for the Services at any time, provided however that, no increases in Fees shall take effect until the conclusion of the Term then in effect.
8.8 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement and any Order Form. If AdPipe has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 8, including for Fees previously invoiced, AdPipe will invoice Customer and Customer will pay that amount (unless Customer provides AdPipe with a valid tax exemption certificate authorized by the appropriate taxing authority). AdPipe is solely responsible for taxes assessable against AdPipe based on its income, property, and employees.
8.9 Suspension of Services for Non-payment and Acceleration. If any amount owing by Customer under this or any other Agreement with AdPipe that is not subject to a good faith dispute is sixty (60) or more days overdue, AdPipe may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such Order Form so that all such obligations become immediately due and payable, and suspend any and all services until such amounts are paid in full. Customer will continue to be charged fees during any period of suspension. If Customer or AdPipe initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account. AdPipe reserves the right to impose a reconnection fee in the event Customer’s account is suspended and Customer later requests access to the Services.
9. Term and Termination.
9.1 Agreement Term. This Agreement will commence on its Effective Date and will remain in full force and effect for so long as any individual Order Form or Subscription remains in effect and for six months thereafter (the “Term”).
9.2 Subscription Term. Each Subscription shall commence on the Subscription Start Date and shall continue in effect for the duration of the Subscription Period, as set forth in the corresponding Order Form, unless earlier terminated in accordance with this Agreement (the “Initial Subscription Term”). Upon the expiration of the Initial Subscription Term of a Subscription, that Subscription shall be renewed automatically for a subsequent period equal to the Initial Subscription Term, unless a different renewal period is set forth in the Order Form or any amendments thereto (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”).
9.3 Agreement Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:
(a) By either Party if the other Party commits a material breach of this Agreement and such breach (i) is incapable of cure, or (ii) is capable of cure but remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;
(b) By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;
(c) By AdPipe, if AdPipe reasonably determines that further provision of the Services would be (or would present a substantial risk) in contravention of any applicable law or rule of any governmental unit or self-regulatory organization;
(d) By AdPipe if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than sixty (60) days following written notice of such unpaid amounts being delivered to Customer;
(e) By either Party, upon notice, in the event of any documented verbal or written abuse (including threats of abuse or retribution) by any employee, officer, agent, or representative of the other Party that is directed toward any employee, officer, agent, or representative of such Party; provided that prior notice and a reasonable opportunity to address and reasonably remediate the same shall be provided before any such termination notice may be served effectively hereunder; or
(f) Upon termination or non-renewal of all Subscriptions and active Order Forms.
9.4 Subscription and Order Form Termination.
(a) Either Party may terminate a Subscription by providing the other Party with sixty (60) days advance written notice of intent not to renew prior to the conclusion of the Subscription Term then in effect.
(b) If an Order Form stipulates Services that are of an ongoing nature (expressly excluding Subscriptions), then, unless otherwise set forth in such Order Form, either Party may terminate that Order Form by providing the other Party with at least thirty (30) days advance written notice prior to the termination date.
(c) Electing not to renew a Subscription or to terminate an Order Form in accordance with this Section shall not terminate any other Subscription, Order Form, or this Agreement, all of which shall remain in effect.
(d) All Subscriptions and Order Forms shall automatically terminate upon termination of this Agreement pursuant to Section 9.3 hereof.
9.5 Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, AdPipe will immediately terminate the Services and Customer will immediately cease all use of the same. Furthermore, upon the termination of this Agreement, AdPipe will have no obligation to maintain or provide any Customer Content and may thereafter, unless prohibited by Law, delete all Customer Content in its systems or otherwise in its possession or under its control.
9.6 Survival. Sections 1, 3, 4, 5.5, 5.6, 6, 7, 8.6, 8.9, 9, 10.4, and 11 through 15 will survive any termination or expiration of this Agreement. Termination of this Agreement will not relieve (a) Customer from its obligations to pay any outstanding Fees; or (b) either Party from any liability arising from any breach of this Agreement. Furthermore, termination of this Agreement by a Party will be without prejudice to any other right or remedy of a Party under this Agreement or applicable Law.
10. Representations & Warranties; Disclaimers.
10.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
10.2 AdPipe Representations and Warranties. AdPipe represents and warrants that: (a) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) it has all rights, licenses, consents, and authorizations necessary to grant the rights and licenses granted in this Agreement; (c) the Platform will operate substantially in conformity with its Documentation under normal use and circumstances; and (d) the functionality of the Platform at the time of the Order Form shall not materially decrease during the Subscription Term. Customer’s sole and exclusive remedy and AdPipe’ sole obligation for a breach of the warranties in this Section will be the correction or re-performance of the nonconforming Service by AdPipe. If, after reasonable efforts, neither remedy is commercially available, AdPipe may cancel this Agreement and refund to Customer a pro-rata portion of the Fees (i.e., all Fees that have been paid but not used by Customer from the date of notice by Customer of such breach).
10.3 Customer Representations and Warranties. Customer represents and warrants that: (a) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of Customer Content that is placed on, transmitted via, or submitted to the Services; and (b) the provision and use of Customer Content as contemplated by this Agreement and the Services does not and will not violate any agreement to which Customer is a Party or any Law or regulation to which Customer is subject.
10.4 WARRANTY DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN SECTIONS 10.1 AND 10.2, NEITHER ADPIPE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, OR GUARANTEES TO THE CUSTOMER, OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES, PLATFORM, UPDATES, DOCUMENTATION, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NO WARRANTY IS MADE THAT USE OF THE SERVICES OR PLATFORM WILL BE TIMELY, ERROR-FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, PLATFORM, SYSTEMS, OR DATA NOT PROVIDED OR RECOMMENDED BY ADPIPE, OR THAT THE SERVICES FUNCTIONALITY WILL MEET THE CUSTOMER’S REQUIREMENTS.
11. Indemnification; Insurance.
11.1 AdPipe Indemnification of Customer.
(a) AdPipe will defend, indemnify, and hold harmless Customer and its respective directors, officers, employees, representatives, and agents (collectively, the “Customer Indemnified Parties”) from and against any and all claims, losses, damages, suits, fees, judgments, compromises, or settlements, costs, and expenses (“Losses”) to the extent based upon or arising from a Third Party claim (collectively, “Third-Party Claims”) alleging (i) unlawful, or fraudulent misconduct by AdPipe or its agents; (ii) a claim that the Services or Customer’s use thereof infringes or violates any patent, copyright, or trademark right of a Third Party or misappropriates any trade secret of any Third Party; or (iii) a breach of its confidentiality obligations under this Agreement.
(b) AdPipe will pay all Losses incurred by and damages against Customer Indemnified Parties but will not be responsible for any compromise or settlement made without its express prior written consent. Such indemnity pursuant to Section 11.1(a)(ii), however, is specifically exclusive of any such claims to the extent they arise or result, directly or indirectly, from Customer’s (i) unauthorized alteration of the Services; (ii) use of the Services in combination with apparatus, hardware, software, or services not provided or authorized by AdPipe; (iii) any use of the Services by Customer that violates any Law (including any regulation of any governmental authority or self-regulatory agency or authority applicable to Customer); or (iv) use of the Services in a manner that violates Sections 5.4 or 5.6 of this Agreement. In order to resolve any such Third-Party Claim relating to Section 11.1(a)(ii), AdPipe may, but is not obligated to, (A) modify or replace the Services to make them non-infringing; (B) procure any rights from a Third Party necessary to provide the Services; or (C) replace the Services with work product that is materially equal in capabilities, capacity, performance, and ease of use but is non-infringing. If none of the foregoing remedies is available to AdPipe on commercially reasonable terms, AdPipe may terminate this Agreement and AdPipe will refund to Customer a prorated portion of any prepaid fees allocable to the period after such termination. THIS SECTION 11.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND ADPIPE’S SOLE AND EXCLUSIVE LIABILITY, REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
11.2 Customer Indemnification of AdPipe. Customer will defend, indemnify, and hold harmless AdPipe and its respective directors, officers, employees, representatives, and agents (the “AdPipe Indemnified Parties”) from and against any and all Third-Party Claims: (a) for gross negligence or willful, unlawful, or fraudulent misconduct of Customer or its agents; (b) resulting from a breach by Customer or its agents of Customer’s obligations under Section 4 (Confidentiality) or Sections 5.4 and 5.6 (Customer Obligations); or (c) alleging that AdPipe’s use or handling of the Customer Content (in accordance with the terms of this Agreement and the Law) (i) infringes or violates any patent, copyright, or trademark right of a Third Party, (ii) misappropriates any trade secret of any Third Party, or (iii) is in violation of the Law.
11.3 Procedure for Handling Indemnification Claims. As a condition to a Party’s obligations under Sections 11.1 or 11.2, the Party being indemnified (the “Indemnified Party”) will provide the Party providing the indemnification (the “Indemnifying Party”) with: (a) prompt written notice of the Third-Party Claim (provided that the failure to provide such notice will not relieve a Party of its obligations unless such failure prejudices its ability to defend the Claim); (b) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (c) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Third-Party Claim. The Indemnified Party may participate in any indemnified matter with counsel of its choosing at its own expense.
11.4 Insurance. AdPipe in its sole discretion shall, at its own cost and expense, procure and maintain certain policies of insurance during the Term of this Agreement.
12. Limitation of Liability.
(a) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NO MATTER HOW CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE, THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR A) ANY INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, OR OTHER INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, OR ACCURACY OF RESULTS, OR B) ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL.
(b) EACH PARTY AGREES THAT A PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT) (THE “GENERAL LIABILITY CAP”).
(c) NOTWITHSTANDING THE ABOVE, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY PURSUANT TO THIS SECTION 12 WILL NOT, IN THE AGGREGATE AND TOGETHER WITH SUCH PARTY’S OTHER LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE GENERAL LIABILITY CAP FOR DAMAGES ARISING AS A RESULT OF: (I) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (II) LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY; (III) FRAUDULENT MISREPRESENTATION BY A PARTY; (IV) BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS; AND/OR (V) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.
Except as specifically set forth in this Agreement or an Order Form, all notices, demands, or consents required or permitted under this Agreement will be in writing. Notice will be considered delivered and effective when (a) personally delivered; (b) one (1) day after posting when sent by a reputable private overnight carrier; (c) five (5) days after posting when sent by certified United States mail, or (d) one (1) day after sending via email; provided that any notice sent via email must be followed by a written notice in accordance with one of the other methods of notification. All notices must be sent to the respective addresses set forth on the signature page to this Agreement or to such other address as may be provided by either Party to the other Party from time to time in writing.
15.1 Publicity. Customer expressly grants AdPipe the right to identify Customer as its customer as well as display Customer Content on AdPipe’s website and in its advertising and promotional materials. In connection with the foregoing, Customer grants AdPipe, during the Term, a non-exclusive, non-transferrable, limited right and license to use Customer’s name, logo, and Customer Content.
15.2 No Third Party Beneficiaries. This Agreement will be binding upon and inure solely to the benefit of the Parties. The Parties intend that there will be no Third Party beneficiaries under this Agreement, and that no person or entity, except the Parties, will have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
15.3 Compliance with Laws. Customer agrees that it will comply with all laws, administrative regulations, and executive orders, including but not limited to those relating to the control of imports and exports of commodities and technical data, use or remote use of software and related property, or registration of this Agreement that may apply in the United States or in any other jurisdiction in which the Services will be located or from which the Services will be accessed under this Agreement, including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of State, and the Enhanced Proliferation Control Initiative. Customer will not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any part of the Services or Confidential Information to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons, as each may be amended from time to time.
15.4 Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents. Except as expressly agreed by the Parties, neither Party will be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
15.5 No Exclusivity. Nothing in this Agreement restricts a Party’s right to contract with any Third Party to provide products and/or services similar to or identical to the Services provided under this Agreement.
15.6 Entire Agreement. This Agreement, the applicable Order Form, and the attachments and schedules attached to this Agreement constitute the entire Agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof. To the extent, there is any conflict among the terms of this Agreement and the applicable Order Form, such conflict will be governed in the following Order Form: (a) the terms of the Order Form; and then, (b) this Agreement and any applicable exhibits, the terms of which are incorporated into the Order Form by reference.
15.7 Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement, and signed by an authorized representative of each Party. Notwithstanding the foregoing, AdPipe reserves the right, in its sole discretion, to make any changes to the Services, the Platform, or any ancillary items or materials that it deems necessary or useful to: (i) maintain or enhance the quality or delivery of the Services, (ii) the competitive strength of or market for the Services, (iii) the Services’ cost efficiency or performance; or (iv) comply with applicable Law; provided that no such changes have the effect of materially degrading the functionality of the Services.
15.8 Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by Law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.9 Force Majeure. Neither Party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of Third Party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a Party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event will extend the due dates or time schedules for reasonable periods of time as determined by the Parties in good faith.
15.10 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed, and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
15.11 Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
15.12 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware and without regard to the U.N. Convention on the International Sale of Goods (CISG).
15.13 Disputes; Arbitration. Any dispute, controversy, or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any Party involved, shall be submitted to, and settled by, arbitration pursuant to the Commercial Arbitration Rules (the “Rules”) of the American Arbitration Association (“AAA”) by Arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Atlanta, Georgia, or as agreed upon by the Parties, and judgment on the award rendered by the Arbitrators may be entered in any court with jurisdiction. The arbitration shall be conducted in the English language. The arbitration shall be conducted by three (3) neutral and impartial arbitrators (the “Arbitrators”). Each Party shall appoint a neutral and impartial Arbitrator of its choosing, and those Arbitrators shall agree upon and appoint the third neutral and impartial Arbitrator. The Arbitrators shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. Notwithstanding the foregoing, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief (including an injunction or preservation of evidence) in any court of law having proper jurisdiction, in addition to all other available remedies. The Parties agree that the prevailing Party in any arbitration action hereunder shall be entitled to receive, in addition to all other damages and awards, the costs incurred by such Party in conducting the arbitration, including reasonable attorneys’ fees and expenses, and arbitration costs. In addition to and not in limitation of the foregoing mandatory arbitration requirements, to the extent that it is necessary to prevent irreparable harm that may be caused to a Party by the breach of this Agreement, that Party will be entitled to equitable relief – including an injunction or preservation of evidence – in any court of law having proper jurisdiction, in addition to all other available remedies.
15.14 Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email, or other means of conventional electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
February 2, 2022 Terms + Customer Agreement