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GENERAL TERMS AND CONDITIONS FOR PARTNERS
BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY TAKING SIMILAR ACTION WHICH INDICATES ASSENT TO THESE GENERAL TERMS AND CONDITIONS FOR PARTNERS (“PARTNER TERMS”), THE PARTNER TERMS BECOME BINDING BETWEEN THIRD PARTY , INC. (THE “SUPPLIER”) AND EITHER (1) THE INDIVIDUAL THAT SO CLICKS OR TAKES ACTION, OR (2) IF THAT INDIVIDUAL IS ACTING AS AN AUTHORIZED REPRESENTATIVE OF A LEGAL ENTITY, THEN THAT LEGAL ENTITY (IN EITHER CASE, THE “PARTNER”). BY CLICKING THE “I ACCEPT” BUTTON, OR BY TAKING SIMILAR ACTION WHICH INDICATES ASSENT TO THE PARTNER TERMS, PARTNER (A) ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTAND THE PARTNER TERMS; (B) REPRESENTS AND WARRANTS THAT THE INDIVIDUAL HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE PARTNER TERMS ON BEHALF OF PARTNER AND CAN BIND PARTNER THERETO; AND (C) ACCEPTS THE PARTNER TERMS AND AGREES THAT PARTNER IS LEGALLY BOUND BY ITS TERMS. IF PARTNER DOES NOT AGREE TO THE PARTNER TERMS, THE INDIVIDUAL SHALL NOT CLICK THE “I ACCEPT” BUTTON OR TAKE A SIMILAR ACTION WHICH INDICATES ASSENT TO THE PARTNER TERMS, AND PARTNER MAY NOT ACCESS OR USE THE PRODUCTS. Supplier and Partner may each be referred to herein as a “Party” and collectively as the “Parties.”
1. DEFINITIONS. Capitalized terms not otherwise defined in the Partner Terms have the meaning ascribed to them below:
(a) “Advertiser” means a third-party advertiser of goods or services with whom Partner works to promote an Offer.
(b) “Authorized User” means those individuals who are authorized by Partner to access and use the Cloud Services, including any third parties that are authorized pursuant to Section 2(a)(ii), subject to the limitations and obligations of Partner under the Partner Terms. An individual cannot be an Authorized User if that individual, or class of individuals to which it belongs, is otherwise ineligible per the terms of the Partner Terms.
(c) “Cloud Services” means any on-demand, subscription-based solution or technology enabled service that is hosted, supported, and operated by Supplier, along with any related Documentation, Embedded Third-Party Content, and Supplier Materials necessary for Partner to make use of the Cloud Services in accordance with the Partner Terms. Cloud Services do not include Third-Party Content.
(d) “Commission” means the agreed upon amount to be paid to Partner by Advertiser as a result of a Conversion.
(e) “Conversion” means when a Partner achieves the intended outcome for Advertiser, as further described in an Offer, and as measured and tracked by the Cloud Services.
(f) “Corporate Affiliate” means any entity now or hereafter that (i) directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with a given Party, and (ii) is under common management with a given Party.
(g) “Documentation” means the technical and functional documentation that Supplier distributes in connection with is Products, as revised by Supplier from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Products.
(h) “IP Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, design rights, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(i) “Marks” means a Party’s logos, tradenames, trademarks, service marks, work marks, and trade dress, whether registered or otherwise.
(j) “Offer” means an agreement between Partner and Advertiser wherein Advertiser agrees to pay Partner for achieving particular advertising performance results for the promotion of certain applications, products, services, networks, and/or advertisements.
(k) “Partner Data” means all information, data, and other content that is provided by Partner or its Authorized Users to Supplier, or Supplier’s Corporate Affiliates or Personnel, through Partner’s or its Authorized Users’ use of the Cloud Services, as well as all information, data, and other content created specifically for Partner as a result of processing the same through the Cloud Services, but only to the extent that any such information, data, and other content does not contain any Supplier Materials.
(l) “Partner Interface” means the portal through which Supplier provides Partner with limited access to some Cloud Services for the sake of connecting Partner to Advertisers in order to facilitate and manage Partner’s promotion of Advertisers’ Offers. The Partner Interface is a type of Cloud Service.
(m) “Personnel” means any employee, director, officer, or subcontractor for a given Party or that Party’s Corporate Affiliate.
(n) “Products” means, collectively, the Cloud Services and the Support Services.
(o) “Supplier Materials” means any and all other information, data, documents, materials, works, content, methods, processes, technical or functional descriptions, database structures, requirements, plans, reports, devices, hardware, software, websites, technologies, and inventions that are developed, provided, or used by Supplier or its Personnel in connection with the Products, or otherwise comprise or relate to the Products. Supplier Materials include Usage Data but do not include Partner Data or Third-Party Content.
(p) “Support Services” means Supplier’s standard and premium customer support services and maintenance that are provided to Partner by Supplier in support of its Products pursuant to the Partner Terms.
(q) “Territory” means the geographic area in which Partner is permitted to use the Products, which is any country that is not excluded by Section 15(a) of these Partner Terms, provided that Supplier reserves the right to prohibit use in any country that it sees fit to designate as ineligible.
(r) “Usage Data” means data created by Supplier or its Products utilizing information derived from Partner’s use of the Products, including, but not limited to, measurement data related to Partner’s relationship with its Advertisers, any end user profile, visit, session, impression, clickthrough or clickstream data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing. The aforementioned data shall be deidentified to the extent that it contains attributes that can be used to identify a natural person.
2. USAGE RIGHTS; LICENSE
(a) Rights Granted & Permitted Use.
(i) Cloud Services. Subject to and conditioned on Partner’s and its Authorized Users’ compliance with the terms and conditions of the Partner Terms, Supplier hereby grants to Partner a limited, non-exclusive, non-transferable (except in compliance with Section 12) right to access and use the Partner Interface, during the Term, solely for use by Authorized Users in the Territory, for the limited purpose of managing Partner’s relationships with Advertisers. Additional terms and conditions for other Cloud Services may be set forth in Appendix A to these Partner Terms (“Product Specific Terms” or “PSTs”). PSTs apply to the extent that Partner uses the specific Cloud Services identified therein. All rights not expressly granted to Partner hereunder are reserved by Supplier. Partner is responsible for its Authorized Users’ compliance with the Partner Terms and shall be liable to Supplier for the actions of its Authorized Users.
(ii) Third-Party Authorized Users.
(A) Corporate Affiliate Use. Partner may authorize its Corporate Affiliates and their employees to use those Cloud Services that Partner is otherwise permitted to use. Any authorized use of the Cloud Services by Partner Corporate Affiliates is subject to the following: (i) Partner warrants that it has the authority to, and by executing an Order Form with permitted Corporate Affiliate use does, bind Corporate Affiliates and their Authorized Users to the terms of the Partner Terms, including, where reasonably appropriate, those terms that do not expressly identify Corporate Affiliates as obligors; (ii) Partner must be appropriately licensed for any and all increased usage of the Cloud Services attributable to Corporate Affiliates and their Authorized Users; (iii) Partner and Corporate Affiliates shall remain jointly and severally liable to Supplier for its Corporate Affiliates’ and their Authorized Users’ use of the Cloud Services; and (iv) a breach of the Partner Terms by an Corporate Affiliate or its Authorized Users shall be considered a breach by Partner hereunder. The Corporate Affiliate use rights set forth herein may only be exercised pursuant to the Partner Terms and for only as long as the Partner Terms are in effect.
(B) Service Provider Use. Partner may authorize its third-party service providers and contractors (collectively “Service Providers”) to use the Cloud Services, but only to the extent necessary for Partner to make use of the Cloud Services as intended by and in accordance with the Partner Terms. Any authorized use of the Cloud Services by Service Providers is subject to the following: (i) these rights will continue only while Partner and Services Providers have in place a written agreement that gives Partner the authority to compel any such Service Providers’ compliance with terms that are not materially different than those portions of the Partner Terms that govern the use of the Cloud Services, including without limitation license grants and restrictions, and non-disclosure of Supplier Confidential Information; (ii) Partner must be appropriately licensed for any and all increased usage of the Cloud Services attributable to Service Providers; (iii) Partner shall remain jointly and severally liable to Supplier for its Service Providers’ use of the Cloud Services; (iv) a breach of the Partner Terms by a Service Provider shall be considered a breach by Partner hereunder; and (v) under no circumstances may Service Providers use the Cloud Services to operate or provide services to any other party, or in connection with Service Providers’ own business operations.
(b) Restrictions. Partner shall not, and shall not permit any other person to, access or use the Cloud Services except as expressly permitted by the Partner Terms. For purposes of clarity and without limiting the generality of the foregoing, Partner shall not, except as the Partner Terms expressly permit: (i) subject to any non-waivable rights Partner may enjoy under applicable law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the Cloud Services’ source code; (ii) modify, enhance, change the data structures for or create derivative works from, the Cloud Services, (iii) rent, lease, sell, sublicense or otherwise transfer the Cloud Services to third parties; (iv) make the Cloud Services available in any form to any person other than Authorized Users who require such access; (v) input, upload, transmit, or otherwise provide to or through the Cloud Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, ransomware, or other malicious computer code (“Harmful Code”); (vi) access or use the Cloud Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Rights or other right of any THIRD PARTY , or that violates any applicable law; (vii) access or use the Cloud Services for purposes of competitive analysis of the Cloud Services; (viii) access or use the Software or Cloud Services to distribute (or facilitate the distribution of) Partner Data that contains, or links to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing, or is otherwise objectionable to Supplier; (ix) access or use the Cloud Services with any use of any data mining robots or similar data gathering or extraction methods; (x) facilitate spam, excessive or unlawfully sourced data transfers, or engage in activity that results in spam warnings from industry spam monitors, and (xi) use the Cloud Services in connection with any effort by Partner to commit fraud or make any misrepresentation with respect to Conversions, Commissions, or otherwise.
(c) Changes. Supplier reserves the right, in its sole discretion, to make any changes to the Cloud Services it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of Supplier’s services to its customers; (B) the competitive strength of or market for Supplier’s Products; or (C) the cost efficiency or performance of the Cloud Services; or (ii) to comply with applicable law.
3. SUPPORT SERVICES. Supplier, through its Personnel, will provide Support Services for the Cloud Services. Supplier shall have the sole and complete discretion to determine what Support Services Supplier will or will not provide.
4. THIRD PARTY RELATIONSHIPS.
(a) Third parties, or Supplier on behalf of third parties, may make available to Partner software, APIs, documents, data, content, specifications, products, equipment, components, websites, or professional services licensed by third parties that are (i) interoperable with or accessible through the Cloud Services, and (ii) not embedded in or inseparable from the Cloud Services (“Third-Party Content”) for use in conjunction with or support of the Cloud Services. Supplier shall have no responsibility for the licensing, implementation, or operation of Third-Party Content.
(b) Third-Party Content does not include any third-party software, libraries, or code that (i) are embedded in or form an inseparable part of the Cloud Services, and (ii) have been licensed by Supplier for use in Cloud Services (“Embedded Third-Party Content”). Partner agrees to comply with any additional terms and conditions which are flowed down from Embedded Third-Party Content providers, as further specified in the applicable PSTs. To the extent that Embedded Third-Party Content is open source software, any such open source software is made available under the applicable open source licenses specified in the applicable PSTs.
(c) To the extent that the Cloud Services are used by Partner in conjunction with its relationship with its Advertisers, Partner agrees to execute and enforce a contract between Partner and each of its Advertisers which governs that relationship (a “Partner-Advertiser Agreement”). A Partner-Advertiser Agreement must, at a minimum: (i) include terms which govern the process of documenting Offers and resolving any disputes related thereto; (ii) make no representations or warranties on behalf of Supplier; (iii) require that the parties to the Partner-Advertiser Agreement comply with all applicable laws, including any Export Laws (as defined in Section 14(a) below); and (iv) acknowledge and agree that Supplier shall have no liability for damages that arise from the subject matter of the Partner-Advertiser Agreement, whether direct, special, incidental, or consequential. In the event that Supplier provides Partner with sample terms and conditions for use with its Advertisers, Partner hereby acknowledges and agrees that any such sample is for its reference only, and that it is the responsibility of Partner and the Advertiser to ensure the terms of its Partner-Advertiser Agreement are appropriate.
5. INTELLECTUAL PROPERTY
(a) Ownership of Products and Supplier Materials. Subject to any rights expressly granted by the Partner Terms, as between Supplier and Partner, Supplier retains all right, title, and interest, including but not limited to IP Rights, in the Products and Supplier Materials, including all enhancements and modifications thereto. Partner acknowledges and agrees that it is only licensing the right to use the Products and Supplier Materials and that no sale or other transfer of any title or ownership or any proprietary interest of any kind to such Products and Supplier Materials is contemplated hereunder, other than the grant of the limited licenses as expressly set forth herein. Partner covenants, on behalf of itself and its successors and assigns, not to assert against Supplier, its Corporate Affiliates, or licensors, any rights, or any claims of any rights, in any Products or Supplier Materials.
(b) Ownership of Partner Data. Subject to any rights expressly granted by the Partner Terms, as between Supplier and Partner, Partner retains any and all right, title, and interest, including but not limited to IP Rights, in the Partner Data.
(c) Consent to Use Partner Data. Partner grants to Supplier a non-exclusive, world-wide, royalty-free, fully paid up, perpetual and irrevocable license to access and use Partner Data as necessary for Supplier, its Corporate Affiliates, and their respective Personnel, to (i) enforce the Partner Terms, (ii) exercise their respective rights under the Partner Terms, and (iii) perform their respective obligations under the Partner Terms. Partner further grants to Supplier, and its Personnel working in an official capacity on behalf of Supplier, a non-exclusive, world-wide, royalty-free, fully paid up, irrevocable license to use Partner Data to create Usage Data. Usage Data, once created, shall become Supplier Materials. In the event that Usage Data, or any portion thereof, is ever deemed Partner Data, Partner shall grant to Supplier a nonexclusive, irrevocable, transferrable, sublicensable, perpetual license to use Partner Data to the extent necessary for Supplier to make use of any such Usage Data in any manner it sees fit. Supplier shall not use Partner Data except as permitted by this Section 5(c).
(d) Partner Feedback. Supplier shall own all right, title, and interest to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Partner to Supplier relating to the improvement of the Products (“Partner Feedback”). Supplier shall have no obligation to Partner with regard to the Partner Feedback. Partner shall have no obligation to provide Partner Feedback.
(e) Use of Marks. Subject to any rights expressly granted by the Partner Terms, each party retains all right, title, and interest in its Marks. Partner shall not use Supplier’s Marks without prior written consent. Partner provides Supplier with permission to use its Marks in Supplier’s promotional and marketing materials. Supplier is granted no other right to the Marks and acknowledges that it shall not have any proprietary interest in the same; however, Supplier shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials to the extent that they do not include the use of Partner’s Marks. Supplier is not obligated to use or to compensate Partner for its use of the Marks. The permission to use the Marks may be terminated at any time by Partner by providing thirty (30) days’ written notice to Supplier. Upon such termination, Supplier shall refrain from future use of the Marks; however, Partner may continue to distribute and use the promotional and marketing materials where Partner’s Marks have been previously printed prior to the notice of termination and where such placements cannot reasonably be discontinued or altered.
6. CONFIDENTIALITY; DATA PRIVACY
(a) Partner Responsibilities. Partner agrees to comply with all applicable anti-spam and data privacy laws and regulations. Partner shall be responsible for securing all rights and permissions to use the Partner Data, or to instruct Supplier to use the Partner Data on Partner’s behalf, in conjunction with the Partner Terms, including all the necessary rights and permissions to license the Partner Data to Supplier as set forth in the Partner Terms. Furthermore, Partner shall be responsible for (i) the integrity of the Partner Data, (ii) the selection and implementation of controls to restrict access and use of the Cloud Services to only Authorized Users, and (iii) implementing all commercially reasonable measures to secure and protect the Partner Data from unauthorized access and loss, to the extent that it is possible for Partner to do so based on a given Product’s available features, functionality, configuration settings, or implementations methods. The responsibilities of Partner set forth in this Section 6(a) are not shared with Supplier unless, and only to the extent that, any such responsibilities are expressly borne by Supplier pursuant to the Partner Terms.
(b) Supplier Responsibilities.
(i) Compliance with Applicable Laws. Supplier will comply with all applicable anti-spam and privacy laws in its performance of its obligations under the Partner Terms and will provide assistance as may be reasonably requested by Partner to meet its obligations under any such laws in connection with the Partner Terms; however, such assistance may be subject to an additional expense for Partner unless the need for such assistance arises from a breach of the Partner Terms by Supplier.
(ii) Data Security. The terms of the Data Processing Agreement set forth at https://mkt.THIRD PARTY .com/gdpr-addendum.html (the “DPA”) shall apply to the extent that Supplier processes any Personal Data (as defined in the DPA) and are hereby incorporated into the Agreement by this reference. Additional terms and conditions with respect to Supplier’s privacy practices are located at https://www.THIRD PARTY .com/resources/data-and-privacy/privacy-policies/. If Supplier does not process any Personal Data, the following shall apply: (A) Supplier shall take reasonable technical and organizational measures to protect Partner Data from unauthorized use and disclosure; and (B) in the event of any unauthorized access to, use, or disclosure of Partner Data from any system within Supplier’s control (a “Data Incident”), Supplier shall inform Partner within a reasonable time following discovery of such Data Incident, use commercially reasonable efforts to investigate and remediate the Data Incident, and provide Partner with information reasonably requested by Customer in Partner’s investigation of the Data Incident.
(c) Mutual Nondisclosure Obligations.
(i) By virtue of the Partner Terms, the parties may have access to the other Party’s “Confidential Information”, which shall mean any information disclosed under the Partner Terms that (A) if tangible, is clearly marked as “Confidential” or with a similar designation; (B) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (C) from the relevant circumstances should reasonably be known by recipient to be confidential (e.g. pricing, non-public Personal Data, Products, etc.). Confidential Information does not include any portion of the information that recipient can prove (V) was rightfully known to recipient before receipt from discloser; (W) was generally known to the public on the Effective Date of the Partner Terms; (X) becomes generally known to the public after the Effective Date of the Partner Terms, through no fault of recipient; (Y) was received by recipient from a THIRD PARTY without breach of any obligation owed to discloser; or (Z) was independently developed by recipient without breach of the Partner Terms.
(ii) The Parties will hold each other’s Confidential Information in confidence and will treat it with the same degree of care with which it would treat its own Confidential Information of a like nature, and in no case less than a reasonable degree of care. With respect to all Confidential Information other than Products and Documentation provided by the Parties, such obligation shall terminate three (3) years after termination of the Partner Terms. With respect to the Products and Documentation provided by Supplier, such obligation is perpetual.
(iii) Except as otherwise expressly stated in the Partner Terms, Confidential Information may only be disclosed to the receiving Party’s and its Corporate Affiliates’ employees, subcontractors, consultants, agents, and other representatives who are required to access it to carry out the obligations or exercise the rights of the receiving Party and its Corporate Affiliates under the Partner Terms, provided that those to whom the receiving Party and its Corporate Affiliates disclose the Confidential Information are contractually obligated to protect such Confidential Information in a manner that is no less restrictive than the requirements set forth in the Partner Terms. Partner Confidential Information may also be disclosed to Supplier’s Affiliates as necessary to facilitate work performed under an agreement that Partner may have directly with an Affiliate, provided that any such Confidential Information shall be deemed Confidential Information, or the equivalent thereof, under that agreement. Each Party shall be responsible for any acts or omissions of its or its Corporate Affiliates’ employees, subcontractors, consultants, agents, and other representatives which, if they were acts or omissions of that Party, would be deemed a breach of that Party’s obligations of this Section 6. Supplier may also disclose Partner’s Confidential Information to an Advertiser or Third-Party Content provider to the extent necessary to facilitate Partner’s relationship with that Advertiser or Third-Party Content provider.
(iv) It shall not be a breach of this Section 6(c) if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided that the Party served with such process promptly notifies, to the extent legally permissible, the other Party and provides reasonable assistance so that the other Party may seek, at its own cost and expense, a protective order against disclosure.
(v) The parties recognize and agree that monetary damages are an inadequate remedy for breach of the obligations set forth in this Section 6(c) and further recognize that any breach would result in irreparable harm to the non-breaching Party. In the event of such a breach or threatened breach, the non-breaching Party may seek injunctive relief from a court of competent jurisdiction to pursue those remedies available to it.
(d) Sensitive Personal Information. “Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical, or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws. Partner shall not collect, process, or store any Sensitive Personal Information using the Cloud Services without prior written consent of Supplier, provided that the execution of any agreement or addendum to an agreement which governs the use of any such Sensitive Personal Information (e.g. a Business Associate Addendum or Data Processing Agreement which expressly covers Sensitive Personal Information) shall be deemed consent.
(e) Return and Destruction of Confidential Information. Except to the extent that the continued use of a Party’s Confidential Information is necessary for the other Party to exercise rights that are intended to survive the Partner Terms as expressly granted hereunder, upon the termination or expiration of the Partner Terms: (i) all rights granted by the disclosing Party with respect to its Confidential Information will automatically terminate and the receiving Party shall immediately cease (and cause its and its Corporate Affiliates employees, subcontractors, consultants, agents, and other representatives to cease) any access to and use of the disclosing Party’s Confidential Information; and (ii) the receiving Party shall securely delete or destroy the disclosing Party’s Confidential Information in a manner consistent with the sensitivity of the Confidential Information. Upon request of the disclosing Party, an officer of receiving Party shall certify to all such deletion or destruction in writing. Notwithstanding the foregoing, the receiving Party may retain a copy of Confidential Information for archival purposes if required by law or in accordance with receiving Party’s bona fide records retention policies, provided that the receiving Party continues to abide by the restrictions set forth in this Section 6 for as long it retains such Confidential Information. Supplier is under no obligation to retain data for more than thirty (30) days beyond the expiration or termination of the Partner Terms.
7. INDEMNIFICATION. Partner will, at its expense, defend Supplier against any claim, demand, suit, or proceeding made or brought against Supplier or any of its Corporate Affiliates or Personnel by a THIRD PARTY (i) arising from or related to Partner’s failure to use the Products in accordance with the terms of the Partner Terms or any applicable laws, regulations, or third-party contractual obligations, or (ii) alleging that any Partner Data, use of Partner Data by Supplier within the scope of the Partner Terms, infringes or misappropriates any rights of a THIRD PARTY , or (iii) which relates in any way to Partner’s relationship with Advertiser, including but not limited to anything arising from an Offer or the Partner-Advertiser Agreement (a “Claim Against Supplier”), and will indemnify Supplier from any damages, attorney fees and costs finally awarded against Supplier, or for amounts paid by Supplier under a settlement approved by Partner in writing, as a result of a Claim Against Supplier; provided that Supplier notifies Partner promptly in writing of the Claim Against Supplier, provides Partner with the sole control and authority to defend or settle the Claim Against Supplier, and gives Partner the authority, information and assistance necessary to settle or defend the Claim Against Supplier.
8. WARRANTY & WARRANTY DISCLAIMER
(a) Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Partner Terms; (iii) the execution of the Partner Terms by its representative whose signature is set forth at the end of the Partner Terms has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both parties, the Partner Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) Additional Supplier Representations, Warranties, and Covenants. Supplier warrants that the Cloud Services will perform in material conformance with current Documentation. As Partner’s sole remedy for any breach of this warranty, if Partner provides notice to Supplier of any reproducible material incidence of non-conformance within thirty (30) days from the date of discovery of any such non-conformance, or the date the Partner reasonably should have discovered any such non-conformance, Supplier will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) negligence, gross negligence, or intentional misconduct on the part of Partner or any of its Authorized Users, (B) Partner’s failure to use of the Cloud Services in accordance with the terms of the Partner Terms, (C) THIRD PARTY Content or any other product or service not provided by Supplier, its Corporate Affiliates, or its Personnel, or (D) Harmful Code, to the extent that such Harmful Code was not introduced as a result of Supplier’s negligence, gross negligence, or intentional misconduct.
(c) Additional Partner Representations, Warranties, and Covenants. Partner represents, warrants, and covenants to Supplier that Partner (i) has complied, and will continue to comply, with all applicable laws and regulations, including but not limited to those applicable to the collection and use of Partner Data in connection with the Partner Terms, and (ii) owns or otherwise has and will have the necessary rights and consents in and relating to the Partner Data so that, as received by Supplier and processed in accordance with the Agreement, including any DPA, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any THIRD PARTY or violate any applicable law or regulation.
(d) DISCLAIMERS. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS, AND THIRD-PARTY CONTENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (i) SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE; (ii) NOTWITHSTANDING STATEMENTS TO THE CONTRARY IN ANY DOCUMENTATION OR SUPPLIER MARKETING MATERIALS, SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, INCLUDING ANY REQUIREMENTS WITH RESPECT TO PARTNER’S OBLIGATIONS UNDER APPLICABLE LAWS, REGULATIONS, OR THIRD-PARTY CONTRACTUAL OBLIGATIONS; (iii) SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY INTERACTIONS BETWEEN PARTNER AND ADVERTISERS, WHETHER SUCH INTERACTIONS ARE FACILITATED BY THE CLOUD SERVICES OR OTHERWISE, OR THIRD-PARTY CONTENT PROVIDED WITH OR AS PART OF THE PRODUCTS; AND (iv) SUPPLIER DISCLAIMS ALL LIABILITY FOR ANY THIRD PARTY ’S PRIVACY OR DATA SECURITY PRACTICES. SUPPLIER’S LIMITED WARRANTIES DO NOT APPLY TO ANY PRODUCT WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN SUPPLIER, ITS AFFILIATES, OR ITS PERSONNEL. SUPPLIER PERSONNEL SHALL HAVE NO AUTHORITY TO MAKE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS ON BEHALF OF SUPPLIER OR ITS AFFILIATES, AND ANY PURPORTED REPRESENTATIONS, WARRANTIES, OR COVENANTS TO THE CONTRARY SET FORTH IN ANY COMMUNICATIONS FROM PERSONNEL SHALL BE NULL AND VOID. Some jurisdictions may not allow the exclusion of certain or any express or implied warranties, representations, guarantees, or conditions, so the above disclaimers many not apply to Partner. Nothing in the Partner Terms excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. The Parties agree that it is Partner’s responsibility to determine if the Products are suitable for Partner’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of the Partner Terms or have any legal effect whatsoever.
9. LIMITATION OF LIABILITY. SUPPLIER’S ENTIRE LIABILITY UNDER THE PARTNER TERMS IN THE AGGREGATE OR IN ANY WAY RELATED TO THE PRODUCTS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO ONE THOUSAND UNITED STATES DOLLARS ($1,000.00). SUPPLIER WILL NOT BE LIABLE FOR: (i) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE PARTNER TERMS OR IN ANY WAY RELATED TO THE PRODUCTS; OR (ii) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA (INCLUDING DUE TO A VIRUS OR OTHERWISE), BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS, CORRUPTION OF DATA, OR CLAIMS AGAINST PARTNER BY ANY THIRD PARTY EVEN IF SUPPLIER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THESE LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, AND WILL APPLY TO ALL ANY DOCUMENT RELATED TO THE PARTNER TERMS, INCLUDING ANY DPA. SUPPLIER SHALL NOT BE LIABLE TO PARTNER FOR ANY CLAIMS WHICH RESULT FROM THE INTERACTIONS BETWEEN PARTNER AND ADVERTISERS, WHETHER SUCH INTERACTIONS ARE FACILITATED BY THE CLOUD SERVICES OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER AND PARTNER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10. TERM AND TERMINATION.
(a) Term. The term of the Partner Terms will commence on the date the terms become binding on the Parties, as further described in the first paragraph of these Partner Terms (the “Effective Date”) and will continue thereafter until terminated earlier by Supplier or Partner in accordance with the terms of the Partner Terms (the “Term”).
(b) Suspension. Supplier may suspend Partner’s right to use any Product without notice to Partner for any reason or no reason. In the event of any suspension under this Section 10(b), (A) Supplier shall not be precluded from exercising any additional remedies that might be available to it under the Partner Terms or otherwise, and (B) Partner forfeits all right to use the Products and any Supplier Materials, including without limitation Supplier’s Confidential Information, during the period of suspension, except to the extent that Supplier gives Partner its prior written consent to use any of the foregoing to cure the default that led to the suspension. Any written notice provided under this Section 10(b) shall also satisfy the written notice requirements of Section 10(c) below. Any choice by Supplier to forego suspension under this Section 10(b) shall not be construed as a waiver of any rights under the Partner Terms or otherwise.
(c) Termination. Either Party has the right to terminate the Partner Terms on thirty (30) days written notice to the other Party. Supplier may terminate the Partner Terms immediately if: (i) Partner uses a Product in a way that violates any law or is causing, or is reasonably expected to cause, material harm to Supplier, its Corporate Affiliates, its Personnel, or the Products; or (ii) Partner becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Partner, Partner assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Partner under any bankruptcy, insolvency or similar laws.
(d) Effect of Termination and Expiration. Upon termination or expiration of the Partner Terms, all rights granted to Partner hereunder will be immediately revoked and terminated. The obligations of the Parties and the provisions of the Partner Terms which are expressly stated to survive, or may be reasonable expected to survive, shall survive the expiration or termination of the Partner Terms, including without limitation Sections 5, 6(c), 7, 9, 12 and 13 of the Partner Terms.
11. ASSIGNMENT. Neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party, except Supplier may assign the Partner Terms to any of its Corporate Affiliates without consent of Partner, provided that the Partner Terms will bind and inure to the benefit of any Supplier successor or assignee. If Partner is acquired by, sells substantially all of its assets to, or undergoes change of control in favor of, a direct competitor of Supplier, then Supplier may terminate the Partner Terms with immediate effect upon written notice.
12. GOVERNING LAW
(a) The law that will apply to any question of interpretation regarding the Partner Terms, any question of the existence of the Partner Terms, or a lawsuit arising out of or in connection with the Partner Terms, and which courts have jurisdiction over any such lawsuit, depend on the country of incorporation or organization, as applicable, of Partner, and will be determined as follows:
Partner Country of Incorporation:
Courts Having Jurisdiction:
The United States of America, Mexico or a Country in Central or South America or the Caribbean
The laws of the State of Maryland and the federal laws of the United States applicable in that state.
(a) The United States District Court for the District of Maryland (to the extent it has subject matter jurisdiction), or (b) the courts of the State of Maryland in Baltimore County
The laws of the Province of Ontario and the laws of Canada applicable in that province.
The United Kingdom or Another Country in Europe, the Middle East or Africa
The laws of England and Wales.
England and Wales
Australia or a Country in Asia or the Pacific Region
The laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable in that state.
(b) Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and, subject to the availability of injunctive relief pursuant to Section 6(c) (Confidentiality) and to Section 13 (Disputes), to the jurisdiction of the applicable courts above. The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.
13. DISPUTES. Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period, the parties will submit the dispute to binding arbitration in the appropriate jurisdiction listed in Section 12(a), by a single arbitrator independent of both parties who is skilled in the legal and business aspects of the software industry. The parties agree that the arbitrator’s fee shall be shared equally between the parties and that each Party shall be responsible for its costs, legal and otherwise, in relation to the arbitration, unless the arbitrator decides that the circumstances justify an award of costs. The arbitration shall be conducted in the English language and shall take place in accordance with arbitration rules and in the location set forth in the below chart, depending on the country of incorporation or organization, as applicable, of Partner. Nothing in this Section 13 shall limit the ability of a Party to seek injunctive relief.
Customer Country of Incorporation:
Applicable Arbitration Rules:
Location of Arbitration:
The United States of America, Mexico or a Country in Central or South America or the Caribbean
Commercial Arbitration Rules of the American Arbitration Association
Baltimore County, Maryland
Canadian Arbitration Association
The United Kingdom or Another Country in Europe, the Middle East or Africa
London Court of International Arbitration
Australia or a Country in Asia or the Pacific Region
Australian Centre for Commercial Arbitration
(a) Export Compliance. The Products, and derivatives thereof, may be subject to export laws and regulations. Partner represents that it is not restricted or prohibited from doing business in the United States of America, Canada, United Kingdom, or European Union, or with any persons or entities therefrom. Partner shall not resell or permit access or use of the Products in any country which has been embargoed by the United States of America, Canada, United Kingdom, European Union, or United Nations, or in violation of any other applicable embargo, export law, or regulation. In the event that Partner is in breach of this Section 14(a), whether such a breach arises from current or future restrictions, prohibitions, or embargos, Supplier shall have the right to suspend or terminate the Partner Terms immediately upon notice to Partner.
(b) Anti-Corruption. Partner represents to Supplier that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Supplier’s employees or agents in connection with the Partner Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Partner learns of any violation of the above restriction, Partner will use reasonable efforts to promptly notify Supplier.
(c) Subcontractors. Supplier reserves the right to make use of subcontractors to provide or develop any of the Products and to use such means as Supplier, in its