Last updated: 13th January 2017
THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN ADBRAIN LTD. ("ADBRAIN" OR “WE” OR “OUR”) AND YOU IN YOUR CAPACITY AS AN AUTHORIZED REPRESENTATIVE OF A COMPANY ("COMPANY" OR “YOU” OR “YOUR”) THAT DESIRES TO PROVIDE THE KINDS OF DATA REQUIRED TO BE PROVIDED FOR ADBRAIN TO PERFORM AND DELIVER ITS ANALYTICS OFFERING.
THIS AGREEMENT SHALL GOVERN (A) YOUR AGREEMENT TO PROVIDE DATA OF THE TYPE AND IN ACCORDANCE WITH THE TERMS SET FORTH BELOW AND IN FULL COMPLIANCE WITH APPLICABLE LAWS AND (B) YOUR USE OF ADBRAIN’S ANALYTICS SOLUTION (INCLUDING THE REPORTS WE OFFER THROUGH SUCH PARTICIPATION AND USE) (THE "ADBRAIN OFFERING").
YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU," OR "YOUR," SHALL REFER TO YOU AND SUCH COMPANY ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE "[ACCEPT]" BUTTON AND MAY NOT ACCESS AND USE THE ADBRAIN OFFERING. YOU MAY ALSO NOTACCEPT THIS AGREEMENT IF YOU ARE OUR DRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. THE "EFFECTIVE DATE" OF THIS AGREEMENT SHALL BE THE DATE OF YOUR ACCEPTANCE OF THE AGREEMENT.
Data and Tech Specifications. Data required to perform the Adbrain Offering must be uploaded by you (“Your Data”) according to Adbrain’s data and technical specifications. The Adbrain Offering may not perform correctly or generated incorrect results if Your Data does not meet our data specifications.
Limited License to Enjoy Benefits of Offering. Adbrain grants Company the right to access and use Adbrain Offering solely for the purpose of supporting your internal business teams to provide services to optimize advertising and marketing for direct clients of Company, and for no other purposes. The Adbrain Offering may not be rented, leased, or otherwise sold on a software-as-a-service or other service bureau basis unless agreed in writing with Adbrain LTD. You may not decompile, reverse engineer or otherwise attempt to discover the source code or trade secrets of the Adbrain Offering, nor engage in any systematic extraction or harvesting of data or data fields. The Adbrain Offering must be used by you in compliance with applicable laws and according to established norms of industry conduct, standards or policies.
Limited License to Use of Your Data to Perform Offering. Company grants to Adbrain the limited worldwide right to use any and all of Your Data collected from Company solely for the purpose of performing the Adbrain Offering including preparing any analytics and reporting for Company. For avoidance of doubt, Adbrain will not sublicense, license or sell Your Data in unmodified or raw format. Subject to the foregoing, Adbrain may archive Your Data in the ordinary course and use such archived data for litigation or defense purposes, and will have no obligation to delete or destroy any such archives following any termination or expiration of this Agreement.
Ownership. You retain all ownership rights in Your Data in raw form. Adbrain will own all derivative works of Your Data that may be produced through performance of the Adbrain Offering. We (and our licensors and suppliers) own all ownership right in the Adbrain Offering, in whole and in every part, as well as report templates, database rights and other intellectual property and proprietary rights and all of the business models supported thereby, all of which shall be deemed to be confidential information and trade secrets of Adbrain. Your right to access and use of the Adbrain Offering does not include a license or right to any underlying technology or databases owned or used by Adbrain.
Term; Termination. This Agreement shall continue until (a) you cease to provide Your Data or use the Adbrain Offering, or (b) Adbrain decides to discontinue, at its sole discretion, the Adbrain Offering. Either party may terminate this Agreement by written notice to the other party, with or without cause, subject to the non-breaching party granting the breaching party a reasonable opportunity to cure in the case of any termination with cause. Adbrain may suspend the Adbrain Offering or terminate this Agreement immediately without notice if it determines in its sole discretion that any confidentiality, non-use or other restrictions hereunder or any applicable laws are being breached or your access or use may pose a security risk, adversely impact any systems or data, or subject Adbrain or any other person or entity to liability or prosecution or other proceeding by a governmental authority.
Representations and Warranties. You represent, warrant and covenant that you have the authority to enter into this Agreement, and that you will not, by using the Adbrain Offering or performing your obligations, violate, conflict with or cause a material default under any agreement or applicable law. Further, you represent, warrant and covenant that:
From time to time Company shall provide information to Adbrain as Adbrain may request or determine necessary regarding its compliance with the foregoing including the method and contents of the end user consents collected by Company. Company agrees to indemnify and hold harmless Adbrain and its and their affiliates, directors, officers, employees, agents and representative for and from any claims, liabilities, damages, losses, costs and expenses (including attorneys’ fees and disbursements) resulting from or arising out of your unauthorized uses of Adbrain Offering or your breach of this Agreement.
DISCLAIMER OF WARRANTIES. ADBRAIN AND ITS RESPECTIVE AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES AND AGENTS HEREBY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT. ADBRAIN FURTHER DISCLAIMS ANY DUTIES OF AN INSURER, BAILEE OR WAREHOUSEMAN AS TO ANY OF YOUR DATA, AND COMPANY HEREBY WAIVES ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ADBRAIN’S POSSESSION OR TRANSMISSION OF YOUR DATA IN ANY FORMAT OR MEDIUM.
LIMITATION ON LIABILITY. OTHER THAN FOR EITHER PARty’s INDEMNIFICATION OBLIGATIONS or wilLful misconduct or gross negligence, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. IF THE ADBRAIN OFFERING DOES NOT MEET ITS OBLIGATIONS FOR ANY REASON, ADBRAIN MAY, IN ITS SOLE DISCRETION AND AS COMPANY'S SOLE REMEDY, RE-PERFORM THE ADBRAIN OFFERING (OR THE PORTION IN QUESTION). IF, NOTWITHSTANDING THE PRECEDING, LIABILITY IS IMPOSED ON ADBRAIN, THEN ADBRAIN’S TOTAL LIABILITY TO COMPANY AND ITS AFFILIATES INCLUDING AS TO ANY INDEMNIFICATION OBLIGATIONS FOR ANY CLAIM, CAUSE, LIABILITIES, DAMAGES, COSTS OR LOSSES WHATSOEVER WILL BE LIMITED TO $1,000.00.
Entire Agreement. Any and all provisions which by their terms are reasonably expected to survive any expiration or termination of this Agreement shall survive any expiration or termination hereof. Neither party is liable or responsible for delays or defaults caused by conditions beyond such party’s reasonable control, including acts of God, fire, flood, accident, electrical outages, earthquakes, telecommunications line failures, network failures, or labor disputes. The parties are independent contractors with respect to each other, and no expressed or implied partnership, joint venture, employment or other association shall be deemed created between them. There are no third party beneficiaries to this Agreement. NOTWITHSTANDING YOUR ACCEPTANCE, ADBRAIN SHALL HAVE NO OBLIGATION TO PROVIDE YOU AND YOUR COMPANY WITH, AND MAY DECIDE IN ITS SOLE DISCRETION TO CEASE PROVIDING, THE ACCESS, USE AND/OR BENEFITS OF THE ADBRAIN OFFERING.