Last Updated: July 27, 2016
These Terms and Conditions (“Terms and Conditions“) are between Adventive, Inc. (“Adventive”) and Advertiser.
These Terms and Conditions apply to Advertiser’s use of the Adventive Website and Adventive Technology to develop and customize Ads (which may contain Advertiser Content) that Adventive will serve to Publishers in accordance with these Terms and Conditions. Advertiser has sole responsibility for securing Publishers and the rights required to the display of Advertiser’s Ads on the Publisher’s Website.
1. Acceptance of Adventive Terms and Conditions and Term.
(a) BY ACCEPTING THESE TERMS AND CONDITIONS, EITHER BY ADVERTISER CLICKING A BOX INDICATING ITS ACCEPTANCE OR BY EXECUTING ANOTHER FORM OF AGREEMENT BETWEEN ADVENTIVE AND ADVERTISER. ADVERTISER (a) REPRESENTS AND AGREES THAT IT IS AUTHORIZED TO CONSENT TO THESE TERMS AND CONDITIONS AND (b) CONSENTS TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. IF ADVERTISER DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, IT MUST NOT USE THE ADVENTIVE WEBSITE.
(b) Advertiser further agrees that checking the box constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”) and that Advertiser has formed, executed, entered into, accepted the terms of and otherwise authenticated these Terms and Conditions and acknowledged and agreed that these Terms and Conditions are an electronic record for purposes of E-Sign, UETA and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by Advertiser. These Terms and Conditions supersede all prior or contemporaneous agreements, representations, and understandings with respect to the Adventive Website, the Adventive Technology and the subject matter of these Terms and Conditions.
(c) These Terms and Conditions shall commence upon Advertiser’s acceptance and shall remain in effect until terminated.
The following defined terms shall apply to these Terms and Conditions:
Account Identifier: the passwords, account identifier or other identification provided by Adventive to Advertiser for login to an Adventive Account.
AdBuilder Software: a software program which may be accessed and used at the Adventive Website with Account Identifier to develop and customize Ads by an authorized user.
Ad or Ads: performance based or transactional advertisement which is in the form of banner, textual links, or transactional display and may include Advertiser Content.
Adventive Account: an account established by Adventive for Advertiser at the Adventive Website to use the Adventive Technology to create Ads.
Adventive Technology: the AdBuilder Software and other technology to which authorized users are granted access by Adventive at the Adventive Website to create Ads.
Adventive Website: the Website that hosts and serves the AdBuilder Software and any subscription services offered by Adventive on the World Wide Web.
Adventive Website Content: the content, organization, graphics, design and other matters located on, appearing in and other matters related to the Adventive Website.
Advertiser: the party who has registered with Adventive at its Signup Page to use the Adventive Website and Adventive Technology, and has been issued an Adventive Account Identifier.
Advertiser Content: the artwork, copy, text, logos, designs, key words, images, URLs and other content submitted, registered, created or chosen by Advertiser for inclusion in an Ad and which may allow the Advertiser to post, share and/or display other information or content provided by it.
Affiliate: an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
CPM Deliverables: Deliverables sold on a cost per thousand impression basis.
Deliverable or Deliverables: the inventory of Ads delivered by Adventive (e.g., impressions, clicks, or other desired actions) to a Publisher’s Website in accordance with these Terms and Conditions.
Publisher: A person or entity who has granted Advertiser the right to display Ads on its Website pursuant to an agreement between the Advertiser and such person or entity (or its agent).
Website: a collection of web pages related in some manner and interconnected via links within a specific domain.
3. Passwords, Identification and Account Security.
Upon these Terms and Conditions becoming effective, Adventive may create an Adventive Account for Advertiser and provide Advertiser with an Account Identifier. Advertiser shall keep its Account Identifier confidential and secure. Advertiser shall be solely responsible to Adventive for all transactions or activities that occur on its Adventive Account. Advertiser shall immediately notify Adventive of any unauthorized use of its Account Identifier or of any other breach of security or if it believes that its Account Identifier has been leaked. Advertiser further agrees that any information it gives to Adventive in creating its Adventive Account is accurate, complete and up to date.
(a) Advertiser will pay to Adventive for the CPM Deliverables it uses. In the absence of a written agreement between Adventive and Advertiser providing to the contrary, all pricing for purchased CPM Deliverables is stated in US dollars and will be billed monthly to a major credit card or via electronic check. Upon receipt of cancellation request, Advertiser’s Adventive Account will remain activated until the start of the next billing cycle. No proration will be provided for early termination. Additional fees for premium apps may apply.
(b) Adventive will provide proof of performance in terms of CPM Deliverables which have been served to a Publishers Web Site for each monthly period by providing Advertiser with access to online or electronic reporting.
(c) Advertiser will be responsible for and shall pay all out-of-pocket costs and expenses incurred Adventive in enforcing its rights against Advertiser under these Terms and Conditions.
5. Records, Data, Statistical Information and Traffic Analysis.
6. Changes to Adventive Website or Adventive Technology.
Notwithstanding anything to the contrary, Adventive may at any time change or discontinue any aspect or feature of the Adventive Website or Adventive Technology. 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 a revised version of these Terms and Conditions or other form of notification permitted by these Terms and Conditions. Any use by Advertiser of the Adventive Website after such notice shall conclusively be deemed to be acceptance by Advertiser of such changes, modifications, additions or deletions. Advertiser agrees to review the Terms and Conditions posted on the Adventive Website periodically to be aware of such revisions.
7. Responsibilities of Advertiser.
(a) Compliance with Laws. Advertiser shall at all times comply with all laws and regulations in the use of the Adventive Website and Adventive Technology.
(b) Advertisements. Advertiser shall be solely responsible for all advertisements it creates using the Adventive Technology, including without limitation, the accuracy and appropriateness of the Advertiser Content appearing therein. Advertiser shall comply with all existing advertising criteria or specifications (including, but not limited to content limitations, technical specifications, privacy policies, user experience policies regarding consistency with public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Web Site on which the Ads are to appear), other editorial or advertising policies) of Adventive and each Publisher who publishes Advertiser’s Ads on its Website.
(c) Advertiser Content. Without limiting the foregoing, Advertiser will not submit any Advertiser Content that: contains malicious code; collects, reads or stores user information; or interacts with the Adventive Technology for any purpose other than the configuration of that Advertiser Content, provided, however, an Ad may collect and store information from users if the user requests that in the form of signing up for a service via the Ad, signing up for a subscription, or requesting more information. Advertiser represents, warrants and covenants that it is fully authorized to publish all Advertiser Content and that it created, owns, or has the necessary licenses, rights, consents, and permissions to use and to authorize use of the Advertiser Content that is consistent with the licenses granted to Adventive in this Agreement. The Advertiser Content, and any Website linked to from 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.
(d) Third Party Links. The Adventive Website may include links to other Websites or services solely as a convenience to users. 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. Advertiser’s correspondence or business dealings with, or participation in promotions of, third parties found on or through the Adventive Website are solely between Advertiser 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 ADVERTISER’S OWN RISK.
(a) Either party may terminate these Terms and Conditions and/or any other agreements between them with ninety (90) days written notice. Either party may also terminate these Terms and Conditions and/or other agreements between them if (i) the other party breaches these Terms and Conditions and fails to cure such breach within 7 days after being given written notice thereof by the party who desires to terminate or (ii) if another party becomes the subject of an involuntary or voluntary petition in bankruptcy or any involuntary or voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Notwithstanding the foregoing, Adventive may at any time in its sole discretion terminate or suspend Advertiser’s access to the Adventive Website and Adventive Technology for any or no reason and remove and discard all or any part of Advertiser’s Account.
(b) Upon termination of these Terms and Conditions, an Advertiser’s Account Identifier will be rendered invalid as of the effective date of termination, and Advertiser will have no further access to the Adventive Website (including its Adventive Account) or Adventive Technology. In the event of termination, all outstanding payment obligations shall become immediately due. Any licenses granted to Advertiser by Adventive hereunder will end in the event of termination of this Agreement. Sections 1, 2, 4, 5, 8, 9, 10, 11, 12, 13 and 14 shall survive termination, along with any other provisions that might reasonably be deemed to survive such termination. Adventive reserves the right at all times, even after termination, to use any information provided by Advertiser in aggregate form to improve the Adventive Website and the Adventive Technology.
(a) Advertiser shall indemnify, defend and hold harmless Adventive and its officers, directors, employees, shareholders, successors and assigns (each an “Indemnified Party“) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to: (i) any breach by it of these Terms and Conditions or any applicable law or regulation by Advertiser, (ii) the actual or alleged violation by Advertiser of any third party’s intellectual property or privacy rights (iii) the content of any Ad, or (iv) any claim by a Publisher.
(b) If any action is brought by a third party against an Indemnified Party hereunder in respect to any allegation for which indemnity may be sought from Adventive, the Indemnified Party will promptly notify Advertiser of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Advertiser at the Advertiser’s sole expense in connection with the defense or settlement of any such claim and (ii) be entitled to participate at its own expense in the defense of any claim. The Advertiser will have sole and exclusive control over the defense and settlement of any such third party claim, provided, that no settlement shall be agreed to by the Advertiser without the prior written consent of the Indemnified Party unless it includes (A) a full and complete release of the Indemnified Party, (B) no payment or other liability to the Indemnified Party which is not fully paid for by the Indemnifying Party, and (C) no restrictions of any kind on the Indemnified Party in the operation of its business or otherwise.
10. Disclaimer of Warranty; Limitation of Liability.
(a) ADVERTISER EXPRESSLY AGREES THAT THE USE OF THE ADVENTIVE WEBSITE AND ADVENTIVE TECHNOLOGY IS AT ITS SOLE RISK. NEITHER ADVENTIVE, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY SERVICE PROVIDERS OR LICENSORS REPRESENT OR WARRANT THAT THE ADVENTIVE WEBSITE OR ADVENTIVE TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ADVENTIVE WEBSITE OR THE ADVENTIVE TECHNOLOGY AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCTS PROVIDED THROUGH THE ADVENTIVE WEBSITE OR THE ADVENTIVE TECHNOLOGY.
(b) THE ADVENTIVE WEBSITE AND ADVENTIVE TECHNOLOGY ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
11. Limitation of Liability.
Adventive shall not be liable to Advertiser for any special, consequential (even if it has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of these Terms and Conditions or the termination of any of the foregoing, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether Adventive has been advised of the possibility of such damages, losses, costs or expenses. Notwithstanding anything herein or elsewhere to the contrary, Adventive’s liability to any party shall not exceed in aggregate the greater of $5,000 or the total amount of fees actually paid to Adventive during any 12 month period under these Terms and Conditions.
In connection with the business relationship contemplated by these Terms and Conditions, Advertiser may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of Adventive, including information in whatever form, relating to Adventive’s business that is not generally known or available to others, including source code and documentation for software, trade secrets, and know how (“Confidential Information“). Advertiser acknowledges and agrees that any Confidential Information received or obtained from Adventive will be the sole and exclusive property of Adventive and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under these Terms and Conditions or as may be required by law. If disclosure of Confidential Information is required by law, Advertiser shall reasonably cooperate with Adventive (at Adventive’s request and expense) so that Adventive may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include any information received by Advertiser under these Terms and Conditions if Advertiser can prove that the information: (a) is or has become generally available to or known to the public through no wrongful act of Advertiser; (b) was previously known by Advertiser through no wrongful act of Advertiser; (c) independently developed by Advertiser without reference to the Confidential Information; or (d) was lawfully disclosed to Advertiser by a third party under no obligation of confidentiality to the other party.
13. Intellectual Property Rights
(a) Advertiser Website Content License. By submitting, posting, linking to or displaying the Advertiser Content in connection with the Adventive Technology, Advertiser grants a worldwide, royalty-free and non-exclusive license to Adventive to display, distribute, and adapt the Advertiser Content and to at all times display the Ad (including but not limited to for purposes of marketing or promoting Adventive in any manner after the termination of these Terms and Conditions (e.g., displayed in a gallery of ads created on Adventive).
(b) Adventive Technology License.Adventive grants Advertiser a limited, non-exclusive, non-transferable license for the term of these Terms and Conditions to use the Adventive Technology solely in accordance with these Terms and Conditions. Advertiser is licensed to use Adventive Website Technology only as specifically permitted hereby. Advertiser does not acquire ownership rights to any Advertiser Technology or any document or other materials viewed, created or downloaded through the Adventive Website.
(c) Intellectual Property Ownership. Subject to the limited licenses granted to the parties in these Terms and Conditions, each party owns and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know-how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future (“Intellectual Property“). Except as provided in these Terms and Conditions, neither party may 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.
14. General Provisions
(a) Representations and Warranties. Advertiser represents and warrants to Adventive that: (i) Advertiser has all necessary right, power and authority to enter into these Terms and Conditions and to perform its obligations hereunder; and (ii) nothing contained in these Terms and Conditions or required by Advertiser’s performance hereunder will place Advertiser in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of these Terms and Conditions shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.
(b) Jurisdiction and Governing Law. Advertiser consents to the exclusive personal jurisdiction of the state and federal courts located in Monroe County, New York and agrees that any claim against Advertiser by Adventive shall be brought in the state or federal courts located in Monroe County, New York. The rights and obligations of the parties under these Terms and Conditions shall be governed by and construed under the internal laws of the State of New York without reference to conflict of laws principles. Advertiser consents to the personal jurisdiction of the state and federal courts located in Monroe County, New York, and agree that any lawsuit shall be filed in this venue.
(c) Force Majeure. Adventive shall not be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond its reasonable control.
(d) Relationship. The relationship of the parties established by these Terms and Conditions 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 these Terms and Conditions are subject to the sole control and management of Adventive.
(e) Notice. Any notice, relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon electronic transmission by e-mail when delivered; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the Advertiser or to Adventive, Inc. at 140 Allens Creek Road, Rochester, NY, 14618, attention: President and [email protected].
(f) Assignment. Adventive may 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.
(g) Amendments and Waivers. The failure of a party to insist upon or enforce strict performance by the other or to exercise any right under these Terms and Conditions shall not be construed as a waiver or relinquishment to any extent of such party’s right 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. These Terms and Conditions may not be amended or modified except as set forth in these Terms and Conditions or by a written instrument signed by both Adventive and Advertiser.
(h) No Third Party Beneficiaries. The parties agree that these Terms and Conditions are not intended to confer and do not confer any rights or remedies upon any person other than Adventive and Advertiser.
(i) Enforceability. If any provision (or part thereof) of these Terms and Conditions 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 these Terms and Conditions shall remain in full force and effect and bind the parties according to its terms.