This is a Service and License Agreement (“Agreement”) between you (“Company”) and ResponsiveAds, Inc. (“ResponsiveAds”), a company with its principle place of business at Suite 600, 411 Lafayette Street, New York, New York 10004, USA. The Web pages available at http://responsiveads.com, and all pages and web applications under the domain http://responsiveads.com unless indicated otherwise (“Site”), are owned and operated by ResponsiveAds.
By using Site and any services accessible from Site, you acknowledge that you have read, understood and agree to these Terms. ResponsiveAds may update Agreement from time to time and it is your responsibility to check for updates.
1 SCOPE OF THE AGREEMENT AND PROCESS
Subject to the terms and conditions of this Agreement, ResponsiveAds may offer to provide certain services that relate to facilitating the technology, hosting, purchase, creating, editing and sale of online advertisements and bringing together online advertisers and publishers, (“Service”). ResponsiveAds may request Company to execute and approve a paper or online Order Form to provide Service to Company. Upon full execution by the parties, each Order Form will be incorporated into and governed by the terms of this Agreement. In the event of a conflict between this Agreement and an Order Form, the terms and conditions in this Agreement will prevail, except to the extent the terms of the Order Form expressly modifies the terms. Words and expressions defined in the Terms shall, unless the context requires otherwise, have the same meanings in the Order Form and any other document which is incorporated in this Agreement. If an Agency has entered into this Agreement on behalf of Company, references herein to Company shall be deemed to include said Agency, it being understood and agreed that the Agency is acting as Company’s agent and that the Agency and Company shall be jointly and severally liable for all obligations and liabilities arising hereunder.
2.1 ResponsiveAds Obligations
ResponsiveAds will use commercially reasonable efforts to: (i) generally make Service available to Company; (ii) create and provide account to Company in order to create and distribute Content, “Content” as defined by ad creatives including, without limitation, advertising units, online ad network tags, rich media ad units; (iii) provide general support for for Service usage such as Content creation, Content delivery, analytics and Reporting (which Reporting will be defined as Service data ResponsiveAds typically provides through its Service that may include and not limited to impressions and click-throughs,).
2.1.2 License Grant
During the Term, ResponsiveAds hereby grants Company a limited, non-exclusive, non-transferable license to use Service to facilitate and manage the delivery of Content in accordance with the terms set forth herein. Company shall not, nor shall it permit others to: (i) use the Service for purposes other than those set forth herein; (ii) download, copy, recreate, disassemble, modify, translate, reverse engineer or decompile the SERVICE or any portion therein; (iii) tamper or interfere with the SERVICE or any portion therein, or (iv) assign, sell, sub-license, lease, or otherwise transfer Company’s right to use the SERVICE or any portion therein.
ResponsiveAds shall provide online knowledge base for assistance on usage of the Service. Other trainings are agreed separately between ResponsiveAds and Company.
ResponsiveAds will use commercially reasonable efforts to provide basic customer service and technical support to Company and Users, including phone, email or web support, as determined by ResponsiveAds, during regular business hours or as otherwise indicated by ResponsiveAds. Company understands such support will be limited to the Service and Company must provide its own support for its goods, services and Content.
2.2 Company Obligations
Company will be solely responsible for any Promotion associated with Content. Without limiting the generality of the foregoing, Company will be responsible for ensuring that: (i) the official rules are in compliance with all Laws; (ii) Promotions are sponsored and administered in compliance with Laws; (iii) any and all prizes, discounts, promotional giveaways and the like are awarded or fulfilled; (iv) any complaints and disputes from Users, regulators and/or other third parties, arising from Promotions are resolved; and (iii) all Content associated with Promotions, including, without limitation, promotional materials and advertisements, complies with Laws.
2.2.3 Requirements to Use Service
Company agrees: (i) to provide true, accurate, current, and complete information about the Company, including proper email and billing addresses, (ii) to maintain and promptly update the information to keep it true, accurate, current, and complete, and (iii) to accept communications from ResponsiveAds at its email address. Company agrees that ResponsiveAds may provide notices, statements, and other communications to Company solely through email, posting on the Site, or other electronic transmission.
Company agrees not to cause the transmission of Content that requires third party consent, unless it has obtained that consent in writing. ResponsiveAds may delay or suspend the delivery of any Content until Company has provided ResponsiveAds with evidence, reasonably satisfactory to ResponsiveAds, that the Company is authorized to send the Content. Company shall also ensure that any and all third party royalties and payments related to Company’s use of Content as contemplated herein are paid to the appropriate parties (such as payments to the Screen Actors Guild and the American Federation of Television and Radio Artists) and Company agrees to indemnify, defend and hold ResponsiveAds harmless for any failure thereof.
3.1 Company Content
Company agrees that ResponsiveAds exercises no control whatsoever over the Content and Messages and is a passive conduit in transmitting and handling Content. The Company shall bear sole responsibility for: (I) the Content transmitted using the Service and (ii) the acts, omissions or breaches of Users with respect to the use of the Service.
3.2 ResponsiveAds Content
From time to time, the parties may agree that ResponsiveAds create or otherwise supply content, which ResponsiveAds Content may include advertising creatives or ad network tags. To the extent provided, Company acknowledges and agrees that: ResponsiveAds makes no representations or warranties with respect to ResponsiveAds Content. Notwithstanding the foregoing, ResponsiveAds retains any and all ownership rights in ResponsiveAds Content unless otherwise agreed in written.
3.3 Links to Other Websites
Our Website may contain links to third party websites. These links are provided solely as a convenience to you. By linking to these websites, we do not create or have an affiliation with, or sponsor such third party websites. The inclusion of links within our Website does not constitute any endorsement, guarantee, warranty, or recommendation of such third party websites. ResponsiveAds, Inc. has no control over the legal documents and privacy practices of third party websites; as such, you access any such third party websites at your own risk.
3.4 Inappropriate Content
Company shall ensure that it will not use Inappropriate Content nor permit the Service to be used to transmit Inappropriate Content. Company acknowledges that ResponsiveAds is not responsible for Inappropriate Content or for monitoring the Service for Inappropriate Content. Notwithstanding the foregoing, ResponsiveAds reserves the right, but not the obligation, to review Content used by Company to determine whether such Content may be deemed Inappropriate Content. If ResponsiveAds reasonably determines that any Content is in fact Inappropriate Content, Company will promptly comply with ResponsiveAds request to cease using such Inappropriate Content. Moreover, ResponsiveAds reserves the right, but not the obligation, to remove any Inappropriate Content from the Service, without notice or liability to Company.
3.5 Security Measures
Company will, at its own expense, take all security measures necessary to: (I) protect the Service from unauthorized access, copying or use; and (ii) prevent third party access to Company’s login IDs and passwords to the Service. Any password issued to Company is subject to cancellation or suspension by ResponsiveAds at any time. Company will immediately inform ResponsiveAds if Company becomes aware of any possible or actual unauthorized use or misuse of the ResponsiveAds Service or the Content.
3.6 Compliance Audit
Company will promptly provide such information as ResponsiveAds may request: (i) to confirm Company’s compliance with its obligations under this Agreement; and (ii) in response to any request made by any legal, regulatory, governmental authority, and/or Network Operator.
3.7 License Grant to Content
Company hereby grants to ResponsiveAds and its designees the worldwide, royalty-free, fully paid, right and license to copy, reproduce, distribute, modify, perform and use any and all Content in order to supply Service as contemplated herein. Without limiting the generality of the foregoing, Company acknowledges, agrees and authorizes that ResponsiveAds may modify, alter, repurpose and otherwise change any Content to the extent reasonably necessary to transmit the Content through the Service.
4 FINANCIAL TERMS
4.1 Fees and Payment Terms
Company will pay to ResponsiveAds the fees set forth in the applicable Order Form within fourteen (14) calendar days of the date of an invoice received from ResponsiveAds. All payments will be made in U.S. dollars. Overdue payments will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum allowed under applicable law. In addition, Company will be liable to ResponsiveAds for all attorneys’ fees and other costs of collection that ResponsiveAds may incur to collect such unpaid or late paid amounts. If the payment is not received by thirty (30) calendar days from the date of invoice ResponsiveAds has rights to terminate or suspend the Service as said forth in section 5.4.
Reporting will be binding upon Company; provided, however, that ResponsiveAds will use reasonable efforts to investigate any errors in Reporting reported by Company and will make adjustments to the extent ResponsiveAds confirms the existence of such errors. Company must notify ResponsiveAds in writing of any alleged errors in Reporting within thirty (30) days of receipt of the applicable Reporting or the Reporting will be deemed final and dispositive.
Fees included in any Order Form do not include taxes or similar fees now in force or enacted in the future that are imposed on the delivery of Service, and Company will be solely responsible for and will pay directly or reimburse ResponsiveAds in full for all taxes, including but not limited to, sales, usage, excise, VAT, property or any other taxes, duties, customs fees or surcharges, excluding taxes based upon ResponsiveAds’ income.
5 TERM, SUSPENSION AND TERMINATION
This Agreement will commence on the Effective Date and will continue for a period defined in Order Form, unless earlier terminated by either party as provided in this Agreement. This Agreement will continue after the preceding period until terminated by either party on sixty (60) days written notice for any or no reason or as otherwise provided in this Agreement.
Either party may terminate this Agreement immediately by notice in writing if the other party (i) becomes insolvent, ceases doing business in the regular course, files a petition for bankruptcy or is subject to the filing of an involuntary petition for bankruptcy which is not rescinded or dismissed within a period of sixty (60) days; or (ii) fails to cure a material breach, if such material breach is capable of cure, of any term or condition of this Agreement within fifteen (15) days of written notice specifying such breach. ResponsiveAds may terminate in whole or in part this Agreement or any Order Form immediately on written notice at any time: (i) upon any legal, regulatory, governmental or Network Operator prohibition or limitation affecting the Service; or (ii) in the event continued provision of Service will cause, in ResponsiveAds’ reasonable determination, undue risk or liability for ResponsiveAds.
5.3 Effect of Termination
Upon the termination of this Agreement: (i) ResponsiveAds will halt the Company’s access to the Service; (ii) all rights granted under this Agreement will terminate immediately; and (iii) Company will immediately return to ResponsiveAds all ResponsiveAds Confidential Information and ResponsiveAds Content in its possession or control. Termination shall not relieve Company’s obligation to pay all fees owed under any Order Form, which obligation expressly survives any termination of this Agreement. ResponsiveAds will not be liable to Company or any third party for any damages, expenses or losses incurred as a consequence of any termination and/or suspension by ResponsiveAds as provided in this Section. The provisions of Sections “Service”, “Financial Terms”, “Term, Suspension and Termination”, “Ownership”, “Warranties; Disclaimer of Warranty”, “Limitation of Liability”, “Indemnification”, “Confidentiality” and“Miscellaneous” will survive any termination of this Agreement.
5.4 Suspension of Service
ResponsiveAds may suspend, in whole or part, with or without notice, the Service if: (i) Company uses the Service in contravention of the Terms; (ii) such action is necessary to address emergency network repairs or threats or actual breach of network security; (iii) there is a termination of a Network Operator, third-party subcontractor, vendor, or interconnected carrier relationship or the discontinuance of support for equipment or a component of service necessary for ResponsiveAds to provide the Service; (iv) upon any legal, regulatory, governmental or Network Operator prohibition or limitation affecting the Service; (v) any payment due to ResponsiveAds is outstanding after the due date for payment; or (vi) whenever ResponsiveAds reasonably believes such action is necessary to protect the Service, prevent undue liability for ResponsiveAds or required to avoid any potential violation of Laws. ResponsiveAds will provide written notice as soon as reasonably practicable of any such suspension. ResponsiveAds will not be liable to Company or any third party for any damages, expenses or losses incurred as a consequence of any such suspension. ResponsiveAds will promptly restore the suspended Service if the condition producing the suspension has been rectified to ResponsiveAds’ reasonable satisfaction.
5.5 Restoring the Service
To reactivate the service due to non-payment as described on chapter 5.4 (v), ResponsiveAds charges five hundred (500) USD for restoring the Service. The fee must be received to ResponsiveAds bank account prior restoring the service.
The intellectual property rights in all software, processes, information, technology or data whatsoever supplied or made available by either party to the other party under this Agreement will remain the property of the supplying party. Except as expressly set forth in this Agreement, neither party grants to the other any license, sublicense or other right in or to such intellectual property rights.
6.2 User data
ResponsiveAds may collect user data, feedback and statistical information in connection with Service. All collected data is owned by ResponsiveAds. ResponsiveAds grants a worldwide, irrevocable, perpetual, royalty-free, transferable and sub-licensable, non-exclusive right to use, copy, modify, distribute, display the statistical data of the advertisements in the Company possession.
6.3 ResponsiveAds Property
Notwithstanding anything contained herein to the contrary, all Intellectual Property Rights in and to the Service, all applicable licenses and ResponsiveAds Content, as well as updates, enhancements, modifications, derivative works or changes made by ResponsiveAds to any of the foregoing, remain with ResponsiveAds and are protected by trademark, copyright, patent and/or trade secret laws. In addition, ResponsiveAds retains all right, title and interest in and to its trademarks, service marks, logos and other proprietary indicia of origin that are acquired, developed, designed, created or contributed by ResponsiveAds in relation to the Service. Company acknowledges the validity of the trademarks, service marks, logos and other proprietary indicia of origin ResponsiveAds uses to provide the Service and agrees not to challenge the validity thereof or claim any rights of ownership or interest in respect thereof. Company agrees to take all reasonable steps necessary to protect ResponsiveAds’ proprietary rights in the Service.
7 WARRANTIES; DISCLAIMER OF WARRANTY
7.1 Legal and Regulatory Compliance
Company represents and warrants that it will: (i) use the ResponsiveAds Service for lawful purposes and comply with all Laws, including any and all legal, regulatory, governmental and/or Network Operator requirements relating to the Content, Advertising or Service; (ii) to the extent supplied by ResponsiveAds, use User Data in compliance with this Agreement and all Laws; (iii) ensure all Content complies with Laws and does not violate any third party rights; (iv) immediately comply with requirements as may be issued from time to time by any applicable Network Operator and/or legal, regulatory, governmental or statutory authority in relation to the Content, Messages or Service and will fully cooperate with ResponsiveAds’ request for assistance in conforming the Service to any new requirements. Company will immediately inform ResponsiveAds if any third party makes or threatens any claim or action against Company, ResponsiveAds, or any other party relating to any Content, Message or Service.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, RESPONSIVEA MAKES NO WARRANTIES OR REPRESENTATIONS IN CONNECTION WITH THE SERVICE AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, CONTRACTUAL OR STATUTORY, EXPRESS OR IMPLIED, OR OTHERWISE INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, QUALITY, FITNESS FOR PARTICULAR PURPOSE OR USE, TITLE, INTERFERENCE, NONINFRINGEMENT, RELIABILITY, TIMELINESS, OR SECURITY AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE. YOU acknowledge that: (i) the Service has not been specifically designed to meet User’s individual requirements; and (ii) THE SERVICE WILL NOT BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), OR THAT ALL MESSAGES WILL BE DELIVERED.
8 LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTION “INDEMNIFICATION”, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE SPECIAL OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, BUSINESS INTERRUPTION, OR COSTS OF LOST OR DAMAGED DATA OR MESSAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPANY AGREES THAT, WITH RESPECT TO THE SERVICE, RESPONSIVEADS WILL NOT BE LIABLE WHETHER IN CONTRACT, TORT, OR STRICT LIABILITY TO COMPANY OR ANY THIRD PARTY FOR: (I) ANY MESSAGES OR DATA DELETED OR NOT DELIVERED, REGARDLESS OF THE REASON FOR DELETION OR NONDELIVERY, INCLUDING, WITHOUT LIMITATION, ADVERTISING PROCESSING, TRANSMISSION ERRORS, OR DELIVERY NETWORKS, NETWORK OPERATOR AND/OR SERVICE FAILURES; (II) THE ACCURACY OF INFORMATION PROVIDED THROUGH THE SERVICE; (III) PROBLEMS RELATED TO COMPANY OR USER ERROR OR PROBLEMS RELATED TO ANY THIRD PARTY; (IV) ANY ACTIONS TAKEN BY NETWORK OPERATORS, INCLUDING FILTERING OF CONTENT OR SERVICE SUSPENSIONS; (V) ANY FRAUDLENT ACTIVITY CAUSED BY A THIRD PARTY IN CONNECTION WITH THE SERVICE; AND (VI) CAUSES BEYOND THE REASONABLE CONTROL OF RESPONSIVEADS. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT. IN ANY EVENT, OTHER THAN FOR CLAIMS ARISING UNDER SECTION “INDEMNIFICATION”, THE LIABILITY OF RESPONSIVEADS FOR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE HEREUNDER BY COMPANY TO RESPONSIVEADS DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Company shall defend any action brought against ResponsiveAds, its officers, directors and employees, and shall pay all costs, liabilities, damages and attorney’s fees awarded against ResponsiveAds, or paid in settlement of such action to the extent such action is based on a third party claim arising from: (i) Company’s breach of this Agreement, an Order Form, or any representation or warranty contained herein; (ii) any act or omission of the Company or its employees, agents or subcontractors in connection with this Agreement, an Order Form, Company’s use of Service; (iii) the conduct of any User in connection with the Service; (iv) fraudulent activity by any third party in connection with the Service; or (v) a claim that the Content or Messages infringes any intellectual property or other rights of any third party, or otherwise fails to comply with any legal, regulatory, or governmental requirements.
The obligations set forth in this Section “Indemnification” are contingent upon: (i) ResponsiveAds giving prompt written notice to Company of any claim for which a duty to indemnify is triggered; (ii) Company having sole control of the defense and related settlement for such claim; and (iii) Company will receive and ResponsiveAds will give full assistance and cooperation in the defense and settlement, as may be reasonably requested by Company.
For purposes of this Agreement, “Confidential Information” shall mean all non-public information, whether oral, written or other tangible form that the party disclosing the information (the “Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, the receiving party (the “Recipient”) knows or has reason to know should be treated as confidential, including without limitation, the Terms. During the term of this Agreement, Discloser may provide Confidential Information to the Recipient to further the business objectives of this Agreement. Recipient shall hold the Confidential Information in strict confidence, provided that the Confidential Information may be disclosed to such of Recipient’s employees and independent contractors who have a need to know for the purpose of fulfilling Recipient’s obligations under this Agreement. Without Discloser’s prior written consent, Recipient shall not, and shall direct such individuals not to, use the Confidential Information other than to perform Recipient’s obligations hereunder, or disclose the Confidential Information in whole or in part, except to the extent compelled by law. Recipient shall employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, all steps that Recipient takes to protect Recipient’s own confidential information. It is further understood and agreed that money damages would not be a sufficient remedy for any breach by Recipient of Recipient’s obligations under this Section and that Discloser shall be entitled to specific injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of obligations under Section “Confidentiality” but shall be in addition to all other available legal or equitable remedies.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, excluding application of its conflicts of law principles. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
The parties hereby agree that all lawsuits arising out of or related to the Agreement will be brought in the state or federal courts located in New York, New York, and each party hereby submits itself to the exclusive personal jurisdiction of such courts for such purpose. Any legal action arising in connection with this Agreement must be filed within one (1) year after the cause of action arises.
Neither party may assign or otherwise transfer this Agreement to any person or entity without the other’s written consent, such consent not to be unreasonably withheld or delayed, provided that withholding consent to assignment of this Agreement to a competitor will be deemed reasonable. Notwithstanding the foregoing, ResponsiveAds may assign all or any of its rights under this Agreement in the case of merger, acquisition or sale of assets.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
Except for payment obligations, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to an Act of God or circumstances beyond the reasonable control of the non-performing party.
Nothing in this Agreement will be construed to place the parties in any partnership, agency or joint venture relationship.
This Agreement, including all applicable Order Forms, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement.
This Agreement may be executed in any number of counterparts, including facsimile counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one agreement.
In case Company has approved and executed Agreement in both online and paper format, the paper Agreement supercedes the online Agreement in case there of discrepancies between the Agreements.
Section headings have been inserted in this Agreement for reference only and it is agreed that such section headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement. Whenever used herein, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders.
This Terms of Service and License Agreement has been last updated on March 7th 2013