These Terms of Service (“TERMS”) are entered into by Adacado Technologies Inc. (“ADACADO”) and the entity executing these Terms or that accepts these Terms electronically (“CUSTOMER”). These Terms govern Customer’s use of Adacado’s advertising software and services (“PLATFORM”). By using or accessing the Platform, customer agrees to be bound by these terms of service and policies. This agreement is legally binding so please read these Terms of Service carefully.
1. Definitions
1.1 “Platform” means the software and services platform made available by Adacado to the Customer for the purpose of allowing users to create and serve digital advertising and buy advertising media across multiple exchanges and supply side platforms.
1.2 “Customer Data” means data that Customer provides to Adacado that Customer owns or has acquired the right to use, and that is stored on the Platform.
1.3 “Advertiser” is defined as a client or property of Customer, either a person or company who provides advertising, whether directly or through the Customer, to promote itself, its brands or the products or services that it offers.
1.4 “PII” means personally identifiable information (that is, information that can be used to identify or locate a natural person, including without limitation, name, address, telephone number, email address, and social security number). “PII” does not include a user’s IP address.
2. License to Use
Subject to the Customer’s timely payment of all required fees, and its continued compliance with all other terms of this agreement, Adacado grants to Customer the non-exclusive, non-transferable, non-sub licensable right and license to access and use the Platform.
2.1 Limits Adacado owns all right, title and interest in and to the Platform. Adacado does not grant any other license, express or implied, to Adacado’s intellectual property rights. Adacado expressly reserves all intellectual property rights not expressly granted hereunder. Customer will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble the Platform or any portion thereof.
3. Policies
Customer is solely responsible for its use for the Platform (e.g. access to and use of account and safeguarding usernames and passwords).
3.1 Prohibited Activities. The Customer shall not
3.1.1 access the Platform using an anonymizing proxy;
3.1.2 gain, or attempt to gain, access to the Platform, or any portions of the Platform, for which it is not authorized by Adacado;
3.1.3 advertise anything illegal, engage in any illegal, deceptive or fraudulent business practice, or take any other action that could result in claims, fees, fines, penalties or other liability to Adacado or any of its affiliated companies;
3.1.4 traffic any advertisements that are false, defamatory, harassing, obscene, or otherwise not in compliance with Adacado’s Creative Policy;
3.1.5 spread, or facilitate the spread of, any viruses, worms or other malicious computer programs that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
3.1.6 traffic any advertisements that infringe upon any party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
3.1.7 license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise make the Platform available to third parties, except as expressly provided herein;
3.1.8 frame, or utilize framing techniques to enclose, any of Adacado’s trademarks, logos or other proprietary information (such as images, text, page layouts and forms);
3.1.9 use any robot, spider, other computer program, or manual process, to monitor or copy the Platform, or any portion of the Platform;
3.1.10 scrape any ads that have been served using the Platform, or use any other automated means of data extraction to access, query or otherwise collect any information related to ads that have been served using the Platform;
3.1.11 make any information derived from the Platform available to others as a form of market research or competitive intelligence; or;
3.1.12 do anything that could disable, overburden or impair Adacado’s, or its partners’, servers, or the proper operation of the Platform.
4. Rejection of Ads and/or Suspension of Account
Adacado may reject, remove or refuse to serve any advertisements that do not comply with Adacado’s policies, or the policies of its various ad inventory partners. Adacado may immediately suspend any Customer account if Adacado reasonably determines that the Customer is not materially complying with this agreement, or the Customer is using the Platform in a manner that could cause damage to Adacado’s business or reputation, or otherwise reflect unfavorably upon Adacado, its affiliates, or its ad inventory partners. Adacado shall notify the Customer in writing, promptly following any such suspension taking effect.
5. Ad Inventory Partner Policies
The Customer hereby acknowledges that use of the Platform, and Adacado’s ability to provide some of the services offered through the Platform, can be subject to the policies of its ad inventory partners, and that such policies may change over time and without notice. Changes to such policies may dramatically impact the Customer’s ability to purchase ad inventory.
6. Customer’s Obligations
6.1 Customer will obtain, and hereby grants to Adacado on a non-exclusive basis, all necessary rights and permissions for Customer’s use of the Platform, including without limitation, rights and permissions needed to authorize Adacado to buy ad inventory on Customer’s behalf (and any third party on whose behalf Customer is acting), perform tracking and analytics, and to store and serve ads.
6.2 The Customer shall purchase ad inventory only for Customer’s own use, or for the use of an advertiser (or an agent of an advertiser) with which Customer has a relationship. The Customer shall not resell, distribute or otherwise syndicate ad inventory to an indirect sales channel (e.g. an ad network, exchange or trading desk) without Adacado’s prior written consent.
6.3 The Customer shall: (i) maintain a privacy policy that is in keeping with applicable industry guidelines and best practices with respect to online privacy; (ii) comply with all applicable laws and regulations (including, but not limited to, laws, rules or regulations relating to advertising, privacy or the use of PII)
7. Deletion of Data
Adacado reserves the right to delete any data in a Customer account which has not been active for 3 months and which does not have a valid payment method.
8. Invoicing and Payments
8.1 Payment Customer will pay all charges incurred in connection with their usage of the Platform, using a payment method approved by Adacado. Adacado uses a post-pay model, meaning that Customer will only pay for charges associated with usage that has already occurred. Adacado may process payments automatically based on predefined payment thresholds or once the calendar month is completed, whichever comes first. Adacado may adjust Customer’s payment threshold at any time, without providing notice to Customer. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Platform.
8.2 Failed Payment If a payment is not successfully settled due to expiration of a payment method, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Adacado and Adacado may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the payment method once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
8.3 Examination of Statements Customer must notify Adacado, not later than ten (10) business days after the start of the month, if Customer believes that the monthly invoice contains any errors, irregularities or omissions or if Customer has any other objection with respect to the invoice or statement. Thereafter, the invoice or statement, as the case may be, will be deemed to be final and conclusively settled and accepted by the parties as a true, complete and correct statement of the amount properly chargeable by Adacado to Customer.
8.4 Primary Obligation For greater certainty, Customer acknowledges and agrees that its obligation to make payment to Adacado hereunder is not in any way contingent upon its collection of fees from Customer’s advertising clients or contingent on any other payment payable to it, directly or indirectly, by any other person.
8.5 Currency All dollar amounts referred to in this Agreement are in United States dollars ($USD).
9. Term and Termination
9.1 Term This agreement is in effect as long as the Customer maintains an account in the Adacado platform.
9.2 Termination Adacado may terminate or suspend Customer’s access to the Platform immediately, without prior notice or liability, if Customer breaches this Agreement or for any other reason.
10. Use of Data
10.1 By Customer Customer may use all anonymized, non-personal data derived from Customer’s use of the Platform for any purpose related to Customer’s business.
10.2 By Adacado Adacado may, without Customer’s consent, use, diagnose and otherwise harness, in whole or in part, all data derived from Customer’s use of the Adacado Platform (a) for any purpose related to Adacado’s business operations, on an aggregate and anonymized basis such that any use or disclosure of such aggregate and anonymized data does not permit a third party to associate any particular data with Customer or any end user, (b) to provide the Platform and, on an anonymized and aggregated basis, to operate, manage, maintain and improve the Adacado Platform.
10.3 End-User Data Any end-user data or information which Adacado receives from Customer’s use of the Platform, whether provided by end-user, or collected by Adacado in performing its obligations under this agreement, may be used by Adacado solely to provide the Platform, except that it may be used by Adacado for any purpose strictly on an anonymized and aggregated basis in accordance with Customer’s privacy policy and all applicable laws, rules and regulations, but only to the extent that such data or information does not include personal data unless user has given consent where required/applicable.
11. Representations and Warranties
11.1 Mutual Representations and Warranties Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the acceptance of this Agreement by such party, and the performance by such party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when agreed upon by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions.
11.2 Customer Representations and Warranties Customer represents and warrants that:
11.2.1 Customer’s use of the Platform will comply with all applicable laws (including the Customer’s collection, use and storage of data in connection with or resulting from its use of the Platform shall comply with all applicable privacy Laws); and
11.2.2 Customer has entered into Agreement with each Advertiser granting Customer the right to deliver said Advertiser’s campaign using the Adacado Platform.
11.2.3 Customer and/or Advertisers own and/or have the right to use to the extent necessary all material contained in the ads, including, without limitation, the copyright, trademark and other proprietary rights in and to such materials and the use of such materials will not violate any federal, state or local laws or regulations;
11.2.4 Customer and/or Advertisers have secured the requisite permission to use any person’s name, voice, likeness and performance as embodied in the advertisement, or any other element contained in said material.
12. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ADACADO PROVIDES ALL OF ITS SERVICES, TECHNOLOGY AND CONTENT, ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ADACADO DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ITS SERVICES, TECHNOLOGY AND CONTENT PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY OF CONTINUOUS, UNINTERRUPTED OR ERROR-FREE OPERATION.
13. Changes to Terms
Customer agrees that Adacado may make non-material changes to these Terms or any policy governing the Platform at any time without notice. Changes to the Terms will not apply retroactively and will become effective immediately. By continuing to use the Platform, Customer consents to the revised or modified terms of this Agreement.
14. Confidentiality
With respect to any Confidential Information, the Receiving Party shall:
14.1 Use the same degree of care to protect Confidential Information of the Disclosing Party that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care);
14.2 Not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement;
14.3 Not disclose Confidential Information to any third party, except as otherwise permitted under this agreement; and,
14.4 Except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
15. Indemnity
Each party (each, an “indemnifying party”) agrees to indemnify, defend and hold the other party, including its directors, officers, employees and agents (each, an “indemnified party”) harmless from and against any third-party claim, loss, damage, expense or liability, including reasonable attorneys’ fees and court costs, arising out of or in connection with the breach or alleged breach of any warranty, representation or covenant made herein by an indemnifying party, or any third-party claim that, if true, would constitute a breach of any warranty, representation or covenant made herein by an indemnifying party. The foregoing indemnity terms are conditioned upon (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed; (b) the opportunity for complete control of the defense and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request. Neither party shall, without the prior written consent of the other party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against the indemnified party.
16. Compliance with Laws
Customer will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any applicable governmental authority.
17. Relationship of the Parties
The parties agree and acknowledge that the relationship of the parties is in the nature of an independent contractor. Neither party may in any manner misrepresent or embellish the relationship between Adacado and Customer, or express or imply any relationship or affiliation between the Parties except as expressly permitted by this Agreement (including by expressing or implying that Adacado supports, sponsors, or endorses any content of Customer’s Advertisers).
18. Limitation of Liability
ADACADO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THE ADACADO AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADACADO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S SOLE REMEDY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO ADACADO OR ADACADO’S PLATFORM IS TO STOP USING THEM. IN THE EVENT THAT THE PRIOR PROVISION IS HELD INVALID, ADACADO’S TOTAL LIABILITY FOR ANY DAMAGES PERMITTED BY LAW DESPITE THIS LIMIT OF LIABILITY AND FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT CUSTOMER PAID FOR THE USE OF ADACADO’S PLATFORM OVER THE THREE MONTHS PRECEDING THE CLAIM OR $5 (FIVE DOLLARS), WHICHEVER IS GREATER.
19. Survival
All payment obligations incurred prior to termination shall survive termination, and any other provisions hereof that may be reasonably interpreted as surviving beyond termination shall survive.
20. Governing Law
This Agreement will be governed by, construed and enforced in accordance with the laws of British Columbia, Canada, without regard to its conflict of laws provisions. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of the Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
