Terms and Conditions

MASTER SERVICES AGREEMENT

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AND YOUR USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any User to access or use a Service, You agree to be bound by this Agreement.  If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Adventive that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” and “Your” shall refer to such Entity and its Affiliates.  

 

1. DEFINITIONS

When used in this Agreement, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

Account: means an account established by Adventive for the Subscriber to which authorized Users are granted access to the Adventive Services.

Account Identifier: means the username, or email address and password of the Subscriber or User required to access the Adventive Services.

Ad(s):  means the performance based or transactional advertisements in the form of a banner, textual links, videos or transactional display built with, or served with, the Services which may contain Advertiser Content.

Adventive: means Adventive, Inc., a Delaware corporation, or any of its successors or assignees.

Adventive Technology: means the Software and other technology built by, or developed for Adventive and incorporated into the Services to which authorized Subscribers and Users are granted access by Adventive.

Affiliate: means an entity of the Subscriber either directly or indirectly controlling, controlled by, or under common control with, such entity.

Agreement: means the Master Services Agreement together with any and all Supplemental Terms and the Adventive Privacy Policy and Cookie Policy.

Advertiser: means the person, company, or other entity for which an Ad is created and/or served with Adventive Services by or on behalf of the Subscriber.

Advertiser Content: means the artwork, copy, text, logos, designs, keywords, images, videos, audio, URLs and other content submitted, registered, created or chosen for inclusion in an Ad.

API: means the application programming interfaces developed by and enabled by Adventive that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interconnection with the Services automatically through HTTPS requests and the application development API that enables the integration of the Services with other web applications.

Beta Service(s): means a product, service, or functionality provided by Adventive that may be made available to You to use at Your option at no additional charge which is designated as beta, non-production, early access, or by similar description.

Confidential Information: means all information disclosed by You to Adventive or by Adventive to You which is in a tangible form and labeled “CONFIDENTIAL” (or with a similar marking) or which a reasonable person would understand to be confidential given the nature of the information or circumstances of disclosure.  Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (e) was lawfully disclosed the receiving Party by a third party under no obligation of confidentiality to the other party.

CPM: means the unit of measurement, cost-per-thousand, used to denote the price of 1,000 Ad impressions, and to determine the charges for the delivery of the Ad(s) on behalf of the Subscriber using Adventive Services.

Deliverable(s): means the Ad(s) delivered by Adventive served to a Publisher Website.

Order Form: means any generated service order forms executed or approved by You with respect to Your Subscription to a Service, which form may detail, among other things, the Service, Subscription Terms, Service Plan applicable to You subscription of a Service.

Personal Data: means the information relating to the identity of a natural person, which can be identified, either directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data or similar online identifier.

Platform: means the collective system of Adventive Services and Adventive Technology.

Publisher: means an entity who has granted the Subscriber the right to display Ads on its website(s) pursuant to an agreement between the Advertiser and Subscriber, and Subscriber and Publisher, where in some cases Subscriber and Publisher, or Subscriber and Advertiser may be the same entity.

Service(s): means the products and services that are subscribed to by You online, or through an Adventive sales representative, whether on a trial or paid basis, and made available online by Us.

Service Data: means electronic data, communications, or other materials submitted to and stored within a Service by You or Your Users, or collected on behalf of You by Adventive in connection with the delivery and performance of the Service, without limitation, may include Personal Data.

Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.

Software: means software provided by Adventive (either by download or access through the Internet) that allows Users to use any of the functionality in connection with the applicable Service.

Subscription Term: means the period during which You have agreed to subscribe to a Service.

Supplemental Terms: means the Adventive Data Processing Addendum and the additional terms and conditions that are contained in this Agreement under the Section entitled “Supplemental Terms and Conditions” which apply and are incorporated into this Agreement with certain Services, features or functionality.

User(s): means an authorized person provided with an Account Identifier associated with a Subscriber account.

“We,” “Us” or “Our”: means Adventive as defined above.

Website(s): means a website operated by Adventive, Inc. including www.adventive.com, as well as all other websites that Adventive, Inc. operates.

2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES

2.1 During the Subscription Term and subject to compliance by You, with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to. An Affiliate may receive Services under this Agreement provided that such Affiliate directly enters into a Service Order Form. By entering into a Service Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.  Subscriber will be responsible for its Affiliates’ compliance with this Agreement.  We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard custom support for the Services to You at no additional charge as detailed on the applicable Site and documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Users)(“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, an act of God, act of government, flood, fire, earthquake, natural disaster, civil unrest, act of terror, strike or other labor problem  (other than involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service, ransomware, malware and other cyber-attacks (“Force Majeure Event”).

2.2 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services or Adventive Technology available to any third party, other than authorized Users and in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) copy, distribute, modify, adapt, hack or reverse engineer to extract software code Services or Adventive Technology or otherwise attempt to gain unauthorized access to Services, Adventive Technology or related systems or networks, or otherwise take action inconsistent with Your acknowledgement that title to Adventive Technology, and all Intellectual Property incorporated therein, shall remain the sole and exclusive property of Adventive; or (c) falsely imply any sponsorship or association with Adventive;

2.3 In connection with the use of Our Services, the Subscriber agrees to not (a) submit any Advertiser Content that (i) contains malicious code; (ii) collects, reads or stores user information (ii) interacts with Adventive Technology for any purpose other than the configuration of that Advertiser Content, provided, however, an Ad may collect and store information from a user at the users sole will.  You further agree that (b) You have obtained consent from the Advertiser to utilize Advertiser Content within the Ad and that (c) the Advertiser owns, or has the necessary licenses, rights, consents and permissions to use and to authorize the use of Advertiser Content; (d) The Advertiser Content, and any website linked to the Advertiser content and any use of any keywords or other matching criteria: (i) complies with all applicable laws and regulations; (ii) does not infringe, misappropriate or otherwise violate any third party intellectual property right, including trademarks, copyrights, trade secrets and patents; (iii) does not breach the rights of any person or entity, including, without limitation, contract rights, rights of publicity or privacy (iv) is not defamatory, unlawful, obscene, threatening, pornographic, sexually explicit, harassing, false, hateful, racially or ethnically offensive or encourage violence or conduct that would be considered a criminal offense; and (v) does not and will not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity (all such items described in (i) – (v) are referred to hereinafter as “Advertiser Content Violations”).

2.4  Subscriber acknowledges that the Adventive Website and Adventive Platform may include links to other websites or services solely as a convenience or reference to Subscriber’s and User’s website and services. Adventive does not endorse any such linked sites or the information, material, products, or services contained on other linked sites or accessible through other linked sites.  Your correspondence or business dealings with, or participation in promotions of, third parties found on or through the Adventive Website or the Adventive Platform are solely between the Subscriber and such third parties.  ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT SUBSCRIBER’S OWN RISK

2.5  You agree and acknowledge that each User will be identified by a unique Account Identifier and such Account Identifier may only be utilized by one (1) individual.  You will not share any User Account Identifiers among multiple individuals.  You and Your Users are responsible for maintaining the confidentiality of all Account Identifiers for Your Account. You agree to be solely responsible for all transactions or activities that occur on Your Account.  You shall immediately notify Adventive of any unauthorized use, or suspected unauthorized use of any Account Identifier associated with Your Account.   Adventive reserves the right to periodically verify that Your use of the Adventive Services complies with the Agreement and Service Plan restrictions on the Adventive Website. 

2.6  In addition to Our rights as set forth in Section 2 and Section 6.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software, code, or violation of these terms in connection with Your Account or use of a Service by You, or Your Users.

2.7  Notwithstanding anything to the contrary, Adventive may at any time change, modify, or discontinue any aspect or feature of the Adventive Website, Adventive Technology, or Adventive Platform. Such changes, modifications, additions, or deletions shall be effective immediately upon notice thereof, which may be given by means, including but not limited to, posting on the Adventive Website, email or written communication.

2.8  Adventive may offer a free trial for any of the Services.  We will make such Services available to You during the trial free of charge, until either (a) the end of the free trial period; or (b) termination of the trial by Us in our sole discretion.  You acknowledge that any configuration, customizations, Ads, and Service Data available during the trial period will be permanently lost and delivery of Ads permanently suspended unless You purchase the applicable Service, or export such Service Data prior to the end of the trial period.

2.9  From time to time, We may make Beta Services available to You at no charge.  You acknowledge your use of Beta Services is at your sole discretion.  You further acknowledge that Beta Services are not supported, are not warranted, may not be error free, and may be discontinued at any time, at Our sole discretion. Adventive will not be liable for any loss, harm or damage arising out of or in connection with a Beta Service.

 

3. CONFIDENTIALITY; SECURITY AND PRIVACY

3.1 In connection with the express permissions of this Agreement, each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less reasonable care.  Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement.  Each Party agrees that it shall only disclose such Confidential Information (a) solely to the employee or employees or non-employee service providers and contractors who have a need to know such Confidential Information solely for purposes of the performance of this Agreement and delivery of the Services, provided that the disclosing Party shall be responsible and obligated for any breaches by such employees, service providers and contractors of the confidentiality obligations set forth herein; or (b) as necessary to comply with an order or subpoena of any administrative agency, provided that the other Party  is given reasonable notice to allow such Party to seek a protective order or other appropriate remedy unless legally prohibited from doing so.

3.2 Adventive will use its commercially reasonable efforts to maintain reasonable administrative, technical and physical safeguards for the protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Service Data.”  Safeguards include, but are not limited to, preventing access, use, modification or destruction of Service Data by Adventive Personnel except (a) to provide the Services; (b) as compelled by law in accordance with Section 3.1(b); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing.  Adventive’s compliance with the provisions of Section 3.2 through 3.5 and the Security Measures set forth in Exhibit B, “How We Protect Service Data” shall be deemed compliance with Adventive’s obligations to protect Service Data as set forth in the Agreement.

3.3 To the extent that Service Data constitutes Personal Data, You agree that You shall be deemed the data controller, and that Adventive shall be deemed the data processor as those terms are understood under the Applicable Data Protection Law.  Unless otherwise agreed to, Service Data may be hosted by Adventive’s authorized third-party service providers in the United States, the European Economic Area (“EEA”) or other locations around the world. Under no circumstances will Adventive be deemed the data controller with respect to Service Data under Applicable Data Protect Law or any relevant law or regulation of any Member State as defined in the Applicable Data Protection Law.

3.4 If Personal Data originates from a User in the EEA, We will ensure pursuant to Applicate Data Protection Law that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of Directive 95/46/EC (or its equivalent under any successor legislation) is satisfied; (c) the transfer is done via the EU-U.S. or Swiss-U.S. Privacy Shield Frameworks.  Upon Your request and subject to Your entry into Adventive’s Data Processing Agreement (“DPA”) We will further ensure that the transfer is subject to the stand contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (the “Model Clauses”), which have been incorporated into the DPA.  As a Subscriber, You can execute Our DPA by emailing Your request to Us at privacy@adventive.com.

3.5 You agree that Adventive and third-party service providers that are authorized by Adventive to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services.  Any third-party service providers authorized by Adventive will only be granted access to Your Account and Service Data as is reasonably necessary to provide the Services and will at all times be subject to (a) the confidentially obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal data as set forth in Section 3.4.

3.6 Whenever You or Your Users, or those viewers of Your Ads, interact with our Services, We automatically receive and record information in Our server logs from the browser or device, which may include IP address, “cookie” information, the type of browser and device being used to access the Service. When collected, We will only utilize this information in aggregate form, and not in a manner that would identify Your Users or viewers of Your Ads personally.

3.7 We receive and store any information that You knowingly provide to Us. In example, through the registration process for Our Services and through Your Account settings, we may collect Personal Data such as your name, email address and phone number. In addition, We may use this information to communicate with You or Your Users directly about the use of the Services. If You or Your Users do not want to receive communications from Us, please indicate this preference by sending an email to privacy@adventive.com providing the name(s) and email address(es) of each individual that no longer wishes to receive those communications.

3.8 We neither rent nor sell Your Personal Data in personally identifiable form to anyone. However, we may share your Personal Data with third parties. For purposes of this section, “Usage Data” means aggregated, encoded or anonymized data that Adventive may collect about a group or category of services, features or users while You or Your Users use a Service for certain purposes, including analytics, and which does not contain Personal Data, which is used to help understand usage trends of the Services.  In addition to collecting and using Usage Data, Adventive may share the Usage Data with third parties, including Our subscribers, partners, and service providers.  We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 By utilizing the Services in connection with the Adventive Technology and within the Subscription Term, You grant a worldwide, royalty-free, transferable, non-exclusive, sublicensable, assignable license to Adventive to use the Service Data to deliver the Services and to display and distribute the Advertiser Content, including but not limited to for the purposes of marketing or promoting Adventive in any manner during or after the Subscription Term (e.g. displaying in a gallery of ads created on Adventive), provided, Adventive will acquire written consent, and for which consent may be withdrawn by the Subscriber at any time.

4.2 Adventive grants the Subscriber a limited, non-exclusive, non-transferable license for the Subscription Term to use the Services and Adventive Technology accordance with this Agreement.  Subscriber is licensed to use the Services and Adventive Technology only as specifically permitted hereby. You acknowledge that You do not acquire ownership rights to any Adventive Technology, documentation, or other materials created by or downloaded from the Adventive Website.

4.3 Subject only to the limited licenses granted to the parties in this Agreement, each Party shall retain all rights, title and interest in and to all its respective trade names, logos, trademarks, service marks, trade dress,  patents, inventions, copyrights, domain names, trade secrets, know-how, endorsements and any other intellectual property and/or proprietary technology (collectively, “Intellectual Property”). The rights granted to You, to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or any Intellectual Property associated therewith.  Except as provided in this Agreement, neither party shall distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other Party without the express written consent of such Party.  Adventive shall have a fully paid, royalty-free, worldwide, transferable, sublicensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, or other third parties acting on Your behalf, including in connection with use of Beta Services.  Adventive’s product and service names and logos used or displayed in or on the Services or Adventive Website are registered or unregistered trademarks (collectively, “Marks”), and You may only use applicable in a manner to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks or to disparage or misrepresent Us, Our Services or products.

5. BILLING, PLAN MODIFICATION AND PAYMENTS

5.1 Unless otherwise indicated on the Order Form referencing this Agreement, in the Supplement Terms entitled “Service Specific Terms” and subject to Section 5.2, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full within thirty (30) days of receipt of invoice.

5.2 Subscriber agrees to pay Adventive any fees included on the Order Form, and for any Deliverables that it uses.  In the absence of a written agreement between Adventive and Subscriber providing to the contrary, all pricing on any Order Forms, agreements, communications written or verbal is stated in US Dollars (USD) and will be invoiced monthly, and must be remitted to Adventive via check, electronic wire transfer, or ACH.

 

6. CANCELLATION AND TERMINATION

6.1 Either Party may elect to terminate an Account or subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your Subscription to a Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed, as of the time such subsequent Term commences.

6.2 No refunds, credits or proration’s for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.

6.3 Except for Your termination under Section 6.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2.3 and 2.6, in addition to the other amounts You may owe Adventive, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.  This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Adventive, provided that You provide advance notice of such breach to Adventive and afford Adventive not less than thirty (30) days to reasonably cure such breach.

6.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You or Your Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Your Users, or any third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Your Users may be referred to law enforcement authorities at Our sole discretion.

6.5 Either Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

6.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the documentation, will have the right to delete or destroy all copies of Service Data in Our systems, backups, or otherwise in our possession or control, unless prohibited by law.

 

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

7.1 Each party represents that it has all of the necessary rights, power and authority to enter into this Agreement.

7.2 We warrant that during the applicable Subscription Term (a) this Agreement and the documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable documentation.  For any breach of warranty above, Your exclusive remedies are those described in Section 6 herein.

7.3 THE ADVENTIVE WEBSITE, ADVENTIVE TECHNOLOGY AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATES IN THIS AGREEMENT.

 

8. LIMITATION OF LIABILITY

8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF ADVENTIVE), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OF ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ADVENTIVE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE CHARGES AND FEES PAID BY YOU DURING THE TWELVE (12) MONTH PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT.

8.3 We acknowledge that some jurisdictions do not allow for the inclusion of implied warranties or limitation of liability for incidental or consequential damages, and as such some of the above limitations may not apply to You.  IN JURISDICTIONS THAT DO NOT RECOGNIZE IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY, ADVENTIVE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

8.4 You acknowledge that any and all claims or damages that You may have against Adventive shall only be enforceable against Adventive and not other entities, its officers, directors, representatives or agents.

 

9. INDEMNIFICATION

9.1 Except with respect to Advertiser Content Violations,We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”).  We, at Our expense shall defend such IP Claim and pay damages finally awarded against You in connection therewith, including reasonable fees and expenses of the attorneys engaged by Adventive for such defense, provided that (a) You promptly notify Adventive of the threat of, or notice of such IP claim; (b) Adventive maintains the sole and exclusive authority and control to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Adventive in connection therewith.

The provisions of Section 9.1 represent the sole, exclusive and entire liability of Adventive to You and constitute Your sole remedy with respect to an IP Claim brought by any reason of access to or use of a Service by You or Your Users.

9.2 You will indemnify and hold Adventive harmless, from and against any claim brought by a third party against Adventive arising from the use of Services by You, or Your Users, in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement, including any Advertiser Content Violations.  You at Your expense shall defend such claim and pay damages finally awarded against the Adventive, including reasonable fees and expenses of the attorneys engaged by You for such defense, provided (a) We shall promptly notify You of the threat of, or notice of such claim; (b) You maintain the sole and exclusive authority and control of the selection of defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.

 

10. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENTS

10.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement without Our prior consent, which consent will not be unreasonably withheld. Adventive may, without Your consent, assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets, provided that such assignment will become effective only upon written notice to the other parties.

10.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Adventive.  This agreement shall apply in lieu of the terms or conditions in any purchase order or other documentation You or any Entity with You represent provides, and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be used by either Party with respect to the subject matter hereof.  The Parties further agree that there are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.

10.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of and such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Adventive as Your consent to any such amendment.  The failure of any party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s rights to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. 

10.4 The parties agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than Adventive and Subscriber.

 

11. SEVERABILITY

If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms,

 

12. EXPORT COMPLIANCE AND USE RESTRICTIONS

The Services and other Software or components of the Services that We may provide or make available to You, may be subject to U.S. export control and economic sanction laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services.  You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, or Your Users are located.

13. RELATIONSHIP OF THE PARTIES

The relationship of the parties established by this Agreement is that of independent contractors, and no party is an employee, agent, partner, or joint venture of the other. The parties acknowledge that this Agreement sets forth a non-exclusive relationship between the parties. The detailed operations of Adventive under this Agreement are subject to the sole control and management of Adventive.

 

14. NOTICE

All notices provided by Adventive to You under this Agreement may be delivered in writing (a) by electronic mail to the electronic mail addressed provided for Your Account owner; or (b) delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service.  All notices provided by You to Adventive under this Agreement may be delivered in writing (a) by electronic mail to legal@adventive.com; or (b) delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to the service address of:

Adventive, Inc.
Attn: Legal Department
140 Allens Creek Rd STE 220
Rochester, NY 14618

 

15.  JURISDICTION AND GOVERNING LAW

This Agreement shall be governed by and construed under the internal laws of the State of New York without reference to conflict of law principles.  Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Monroe County, New York. You expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purposes of resolving any dispute relating to this Agreement or access to or use of the Services by You or Your Users. 

 

16.  SURVIVAL

Sections 1, 3.1, 3.4, 3.8, 7.3 and 8-16 shall survive any termination of our agreement with respect to use of the Services by You, or Your Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

 

SUPPLEMENTAL TERMS AND CONDITIONS

SECTION 1: HOW WE PROTECT SERVICE DATA

Adventive is committed to providing a robust information security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.

As provided for in Section 3.2 of the Agreement, We will abide by these Security Measures to protect Service Data as is reasonably necessary to provide the Service:

1. Network Security. The Adventive Platform will be electronically accessible to employees, contractors and any other person as necessary to provide the Services.  Adventive will maintain access controls and policies to manage what access is allowed to the Adventive Platform from each network connection and use, including the use of firewalls or functionality equivalent technology and authentication controls.  Adventive will maintain corrective action and incident response plans to respond to potential security threats.

2. Systems Access Controls. Adventive shall take reasonable measures to prevent Personal Data from being used without authorization. These controls shall very based on the nature of the Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication documented authorization processes, document change management processes and/or, logging of access on several levels.

3. Data Access Controls. Adventive shall take reasonable measures to provide that Personal Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access; and, that Personal Data cannot be read, copied, modified or deleted without authorization in the course of Processing.

4. Data Backups. Backups of the databases in the Service are taken on a regular basis, are secured, and encrypted to ensure that Personal Data is protected against accidental destruction or loss when hosted by Adventive.

5. Physical Access Controls. Adventive shall take reasonable measures to prevent physical access, such as security personnel and secured buildings and other premises, to prevent unauthorized persons from gaining access to Personal Data, or ensure Third-Parties operating datacenters on its behalf are adhering to such controls.

6. Limited Employee and Contractor Access.  Adventive provides access to the facilities to those employees and contractors who have a legitimate business need for such access privileges.  When an employee or contractor no longer has a business need for the access privileges assigned to him/her, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of Adventive or its affiliates.