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Terms of Service

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ADZERK TERMS OF SERVICE

These Terms of Service apply to you (“you” or “Customer”), a user of our Service, and along with the Order agreed by you and Adzerk constitute a binding agreement (the “Agreement”) between you, as an individual, and if you are purchasing or using the Service as part of your job responsibilities, the legal entity that you represent, and Adzerk, Inc. (“Adzerk”).

Please read all the terms and conditions of the Agreement carefully. By accepting an Order and/or using the Service, you agree that you are bound by the terms and conditions of the Agreement, and you represent and warrant that you have full power, authority and legal capacity to enter into and bind your employer to the Agreement. Please contact Adzerk at legal@adzerk.com if you have any questions about the Agreement.

1. Definitions

“Ads” mean advertisements for products and/or services (including house ads and third-party ads) displayed in connection with the Service.

“Ad Decision Request” means any query that is made by Customer to Adzerk to make a decision on via the API

“Affiliated Entity” means: (i) your affiliate or subsidiary; and (ii) your customer (but only so long as you provide materially more services to such customer in addition to facilitating the serving of Ads).

“Authorized User” means an employee or contractor of Customer or an Affiliated Entity.

 “Effective Date” means the date that an Order has been signed or otherwise accepted by the parties.

 “Event” means any item measured by the Service, including impressions, clicks, conversions, or other custom item unique to you.

“Order” means a web-based or signed paper Order completed by you when ordering the Service.

“Request” means any http query that is made by Customer to Adzerk via the API

“Service” means the provision by Adzerk to you of online ad serving and related administrative service, in accordance with the Service descriptions and other options as set forth in the Order. The Service includes the provision on a hosted basis of non-exclusive use and access to the Software, and associated hosting and support services as described herein.

“Service Offerings” mean the Internet websites, WAP portals, and other internet-enabled services associated with the URL’s and/or advertising networks owned or controlled by you and/or your Affiliated Entities.

“Site” means the web site at www.adzerk.comwww.adzerk.net and/or such other web site or sites that Adzerk communicates to you where you may access the Service.

“Software” means Adzerk’s proprietary software used by Adzerk to deliver the Service, made available to you through the Site on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Service pursuant to the Agreement.  

2. Service

a. Under the terms of and subject to the restrictions in the Agreement, including payment of all applicable fees, Adzerk will provide the Service to you during the term of the Agreement. You may use and access the Service and Software solely through the Site and through the API (defined below). Your rights to use the Service are non-exclusive and non-transferable. You may use the Service only to serve Ads in connection with the Service Offerings.

b. Adzerk will provide technical support to Customer based on Customer’s support level as set forth in the Order (support options are detailed in Exhibit A).

c. The parties agree to the terms of the Service Level Agreement in Exhibit A.

d. Adzerk may from time to time modify the Service and add, change, or delete features of the Service in its reasonable discretion, without notice to you. Your continued use of the Service after any such changes to the Service constitutes your acceptance of these changes. Adzerk will use commercially reasonable efforts to post information on the Site regarding material changes to the Service.

e. The Service may be used and accessed only by Authorized Users who have a need to access the Service. In no event may third parties other than Affiliated Entities use and access the Service provided to you.   Neither you nor any Affiliated Entities or Authorized Users may use the Service or any of the Software to compete with Adzerk.  You shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of the Agreement.

f. You agree that all user information provided to Adzerk by you and/or the Authorized Users, whether for purposes of obtaining a user name and password or otherwise, will be accurate and complete in all respects. You agree to promptly notify Adzerk of any changes to any user information. You further acknowledge that you are solely responsible for: (a) all use of the Service made using your Authorized Users’ user names and passwords, and (b) maintaining the confidentiality of your Authorized Users’ user names and passwords. Only one individual may access the Service at the same time using the same user name and password. You agree to notify Adzerk immediately of any unauthorized use of an Authorized User’s email address, user name or password, or any other breach of security regarding the Service of which you become aware.

g. Adzerk may use Customer’s name and logo on Adzerk’s marketing website and in a marketing one-pager or similar marketing materials highlighting current Adzerk customers.

h. You warrant and agree not to:

    1. Use or allow the use of the Service to deliver spyware, adware, spam, or other deceptive or fraudulent Ads and/or malicious code
    2. Violate any local, state, national or international law or regulation in connection with use of the Service, or otherwise use the Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity
    3. Interfere with or disrupt the Service or servers or networks connected to the Service
    4. Violate any codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Service
    5. Interfere with or attempt to interfere with any other person’s use of the Service
    6. Gain access to or attempt to gain access to any account, computers or networks related to the Service without authorization
    7. Use the Service in a manner that results in excessive bandwidth usage as determined in Adzerk’s sole discretion.
    8. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Service
    9. Use traffic sources generated by toolbars, plugins, piracy sites, and/or any similar sites or applications.

3. Intellectual Property

a. You agree that Adzerk and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. You further agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit, other than Affiliated Entities subject to the terms herein. Adzerk reserves all rights in the Service and Software not expressly granted to you hereunder.

b. You shall retain ownership of all your rights in the content and data provided to Adzerk in connection with your use of the Site and the Service (“Customer Data”). You hereby grant Adzerk a non-exclusive license to copy, use, distribute and disclose the Customer Data solely as necessary to provide the Service.

c. Adzerk may derive and compile from your usage of the Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about you or any individual. Such aggregated data and metadata may be used for Adzerk’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve Adzerk’s products and services, create new products and marketing.

d. Customer acknowledges and agrees that Adzerk and its licensors’ trademarks, brand names and copyright notices will be included on the Service and associated documentation. Customer agrees not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Service and associated documentation.

e. Adzerk shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by you or any Authorized User relating to the Service.

4. API Terms

a. Adzerk provides an application programming interface (“API”) as part of the Service. The API allows you to create scripts and programs to automate certain tasks performed through the Service and to enable certain integrations.

b. Adzerk may from time to time set and update limits on your usage of the API, including without limitation limits on API calls and requests and access to data (the “API Limits”).  The API Limits will be described on the Adzerk website and/or in Adzerk documentation.  You agree to comply with all API Limits, and further agree that you will not use the API in a manner that constitutes excessive or abusive usage, or otherwise is in breach of the terms of this Agreement.  Without limiting the foregoing, you agree not to use the API in a manner that competes with any software or services provided by Adzerk, or that provides API functionality to third parties.  You will not circumvent or attempt to circumvent any API Limits.

c. Adzerk reserves the right to monitor your API usage to verify compliance with the terms of the Agreement and to improve Adzerk’s products and services.  You agree not to interfere with any such monitoring.

d. Adzerk may update the API from time to time without notice to you.  You acknowledge and agree that such updates may cause issues with any scripts or programs written with earlier versions of the API, and that it is your sole responsibility to update any such scripts or programs.  Adzerk does not guarantee backwards compatibility when it updates the API.

e. You are solely liable and responsible for your and your Authorized Users’ use of scripts, programs, and interfaces written with use of the API (“Customer Scripts”).   Adzerk has no liability or responsibility for mistakes or actions caused by Customer Scripts, and/or any errors, misuse or unintended use associated with your or any Authorized User’s use of the API or Customer Scripts.

5. Fees and Expenses

a. You agree to pay Adzerk all fees associated with the Service as set forth in the Order.  Unless otherwise set forth in the Order, the following payment terms shall apply:

(i) Base fees for the first month are due upon the Effective Date.
(ii) Subsequent fees will be invoiced within five (5) days after the end of each calendar month during the term. If credit card payments are specified on the Order, Customer authorizes its credit card to be charged by Adzerk for the invoiced amount at the time of invoice. If Customer is not paying by credit card, then Customer agrees to pay the invoiced amount within ten (10) days of receipt.

The amount and structure of all fees and rates may be reasonably adjusted by Adzerk for any Renewal Term; Adzerk will provide Customer with a copy of then-current fees and rates upon request.

b. All payments under the Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one percent (1 %) per month, or (b) the maximum rate allowed by law.

c. Customer agrees that if Ad Decision Requests made in connection with the Service exceed 110% of total impressions, Adzerk will charge based on 90% of total requests instead of impressions.

d. You shall be responsible for all applicable taxes, however designated, incurred in connection with the Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by Adzerk, but excluding taxes based upon the net income of Adzerk.

e. If a payment becomes five (5) days or more overdue, Adzerk reserves the right to suspend your access to the Service without liability to you, until payment is made in full. If any payment becomes ten (10) days or more overdue, Adzerk may terminate the Agreement upon notice to you. Adzerk has the right to change payment terms, including by requiring upfront payment for the Service, in its discretion based on your payment history and/or financial status.

6. Confidentiality

a. “Confidential Information” means any non-public information or data that is disclosed by one party to the other party pursuant to the Agreement. The Confidential Information of Adzerk includes the Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Software. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of the Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.

b. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, (b) to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (c) except as expressly authorized by the Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information as required by law; in such event, the receiving party shall (if permitted by law) inform the other party prior to any such required disclosure to allow the other party to seek a protective order or other limitations on such disclosure.

c. Each party acknowledges and agrees that any violation of this Section 6 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.

d. Upon termination or expiration of the Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.

7. Term and Termination

a. The initial term of the Agreement (“Initial Term”) begins on the Effective Date of the Order.  Subject to Customer providing Adzerk with reasonably requested information, assistance and approvals, the Service will begin on the start date as specified in the Order (“Start Date”).   If the Start Date is delayed by Customer, then the Start Date will be such later date as reasonably specified by Adzerk.  The Initial Term will continue for the term specified in the Order, beginning on the Start Date, unless terminated earlier as set forth herein.  The Agreement and the Service shall automatically renew for terms equal to the Initial Term (each a “Renewal Term”) unless written notice of non-renewal is given by a party to the other party at least sixty (60) days prior to the expiration of the then-current term.

b. Neither party may terminate the Agreement without cause except prior to a Renewal Term as set forth in the above paragraph. 

c. Either party may terminate the Agreement if the other party materially breaches the Agreement and does not cure such material breach within thirty (30) days after written notice. Adzerk may suspend the Service if you breach the Agreement (including but not limited to by means of failure to make payments due hereunder) and the breach is not cured within five (5) days after written notice.  Adzerk also has the right to shut down or block traffic sources that are in violation of the usage restrictions in Section 2(g) above.

d. The terms in Sections 3, 4(e), 5, 6, 7(d), 8, 9, 10, 11, 12, 13, and 14 herein shall survive any termination of the Agreement. In addition, upon termination you shall promptly pay Adzerk all outstanding amounts due to Adzerk under the Agreement.

8. Independent Contractors

a. The parties are and intend to be independent contractors with respect to the services contemplated hereunder. Adzerk agrees that neither it, its employees nor its contractors shall be considered as having an employee status with you. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.

9. Warranties; Disclaimers

a. You and Adzerk each warrant that they have full authority to enter into the Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. In addition, Adzerk warrants that the Service will substantially conform to the written or electronic documentation provided by Adzerk in connection with the Service. In the event of a breach of this warranty by Adzerk, as your sole and exclusive remedy, Adzerk will, at its expense, use commercially reasonable efforts to cause the Service to conform.

b. You represent and warrant that all Customer Data: (i) is owned by you, or you have the full right to provide the Customer Data to Adzerk; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that your use of Customer Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. You are solely responsible for the Customer Data, and acknowledge that Adzerk has no responsibility or intent to review or monitor any Customer Data.

c. You shall be solely responsible for your use of the Service, and, acknowledge and agree that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.

d. The Service may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems (“Third-Party Materials”). Your use and access of these features and functionality are subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. Adzerk has no responsibility for any Third-Party Materials, and you irrevocably waive any claim against Adzerk with respect to such Third-Party Materials.

e. Adzerk does not warrant that the Service will operate without interruption or error-free, or that the Service will be totally secure. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that Adzerk has no control over the functioning of the Internet, and Adzerk makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ADZERK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.

10. Indemnification

a. You, at your expense, shall indemnify, defend and hold Adzerk and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in the Agreement, (b) your compliance with applicable laws and regulations, and (c) the Customer Data. Adzerk shall provide you with prompt written notice of any such claim.

11. Liability

a. The limit of Adzerk’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to you or to any third party concerning performance or non-performance by Adzerk, or in any manner related to the Agreement or the Service, for any and all claims shall not exceed in the aggregate the fees paid by you to Adzerk hereunder with respect to the Service at issue (excluding any fees or charges relating to approved expenses incurred by Adzerk on behalf of you) during the three (3) months prior to the date that the relevant cause of action accrued.

b. In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence.

c. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and Adzerk’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.

12. Dispute Resolution

a. The parties agree to work together in good faith to resolve any dispute regarding the Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.

b. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Wilmington, Delaware (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.

c. The Agreement shall be interpreted, construed, and governed by the laws of the State of Delaware, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.

13. Miscellaneous

a. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.

b. The Agreement (including the Order and any attachments thereto specifically agreed by the parties) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of the Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right.

c. You shall have no right to assign the Agreement or any of your obligations hereunder. Adzerk may assign the Agreement and any of its rights hereunder to third parties.

d. Every provision of the Agreement is intended to be severable. If any section of the Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from the Agreement and the rest of the Agreement will remain in full force and effect.

e. The Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever. There are no intended third-party beneficiaries under the Agreement.

f. You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to Adzerk's business or related technical data or any direct product thereof to any Restricted Person.

14. Agreement and Amendments

a. By executing an Order, you represent that you are 18 years old or older, are authorized to bind any legal entity that you represent, and agree to all of the terms in the Agreement. You may print and keep a copy of the Agreement.

b. Adzerk may reasonably modify or change these Terms of Service, including all Exhibits, at any time by posting the changes to the Site. Your continued use of the Site or Service following the posting of such changes constitutes acceptance of those changes. With respect to changes in the SLA, you may elect to maintain the version of the SLA in effect at the Effective Date for the current term of the Agreement, upon written notice to Adzerk.  Adzerk will use reasonable commercial efforts to provide notice of material changes to you.

EXHIBIT A

SERVICE LEVEL AGREEMENT

1. Support Levels

a. Standard Support.  Email and knowledge base support with an eight (8) business hour response time for email inquiries.
b. Premium Support.  Account management, email, knowledge base and scheduled phone for the lifetime of the account with monthly check-in calls. Response times for email inquiries will be eight (8) business hours or less.

2. Service Commitment

a. Adzerk will use commercially reasonable efforts to make the Service Available with a Monthly Uptime Percentage of at least 99.9%. In the event Adzerk does not meet the Monthly Uptime Percentage commitment, Customer will be eligible as its sole remedy for such failure to receive a Service Credit as described below.

b. Adzerk will use commercially reasonable efforts to ensure that Service response times for Ad requests will be completed as quickly as possible. Ad calls for a single Ad should average less than 220ms over a month long period. This will be measured by a third party utility from locations in Washington, DC , Dallas, TX, and San Francisco, CA. This only includes the initial Ad call to Adzerk and not the loading of an iframe, graphic, or third party ad code. If the average goes above 220ms in a given month, Customer will be eligible to receive a Service Credit as described below. Customer will also be eligible to receive a Service Credit if more than 5% of the calls take longer than 400ms as measured by a third party from any of the above listed locations.

c. Adzerk will use commercially reasonable efforts to ensure that Customer Data stored with the Service is safe, secure, and backed up at all times. In the event of a failure Adzerk will have data restored and available within 12 hours. If this does not happen or there is data loss, Customer will be eligible as its sole remedy to receive a Service Credit as described below.

d. Adzerk will use commercially reasonable efforts to minimize the amount of scheduled maintenance downtime, each Service Month Adzerk will be allowed a maximum of 2 hours of scheduled maintenance per service. If the Service is down more than a maximum of 2 hours in a given Service Month for maintenance, Customer will be eligible as its sole remedy to receive a Service Credit as described below. To be considered scheduled maintenance it must occur between the hours of 10PM and 4AM ET and at least 24 hours notice must be given to Customer (or Customer must approve emergency maintenance if less than 24 hours notice).

SLA Definitions

Available” means that the ad server is responding to ad requests in less than a second. “Service Month” is each calendar month during the term of the Agreement.

Eligible Credit Period” is a single month, and refers to the monthly billing cycle in which the most recent downtime occurred.

 “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 5 minute periods during the Service Month in which the Service was not responding to ad requests. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA exclusion per Section 4 below.

 “Service Credit” means 10% of Customer’s invoice for the Eligible Credit Period.

Service Credits

a. Adzerk will apply any Service Credits only against future Adzerk payments otherwise due from Customer, unless the Agreement is terminated, in which case Adzerk shall refund such amounts to Customer. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD).  The total Service Credits in an Eligible Credit Period will not exceed 100% of Customer’s invoice for the Eligible Credit Period.

Credit Request and Payment Procedures

a. To receive a Service Credit, Customer must submit a request by sending an e-mail message to billing@adzerk,com. Adzerk will issue the Service Credit to Customer within one billing cycle following the month in which the request occurred.

SLA Exclusions

a. The Service Level Agreement does not apply to any unavailability due to scheduled maintenance, network and other issues outside of Adzerk’s (or Adzerk’s hosting providers) control, or issues due to mis-configuration of the Service.

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