Adder Mobile Technologies Website & Portal Terms of Service
These Adder Mobile Technologies Website & Portal terms are entered into and agreed upon by the end user.
(“Adder”) and the Adder account holder listed below (“Customer”). The individual executing these Terms on behalf of Customer warrants that he or she is authorized to accept these Terms on behalf of Customer. These Terms, along with any additional terms and policies set forth on the user interface of Adder’s automated advertising platform (the “Platform”; collectively, the “Terms”), govern Customer’s access to and use of the Platform with respect to any orders (“Orders”) placed through Customer’s account with Adder.
Adder Mobile Technologies Website & Portal
The Platform is an automated online analytics, spatial tracking/location, advertising and services platform through which Adder offers various Products. Adder may add, eliminate, or modify any Product at any time, in its sole discretion.
Adder has the right, but not the obligation, to upgrade, modify, improve, and enhance the Platform and Products thereunder and to take any action that Adder deems appropriate to protect the Platform and its facilities.
By using Adder’s Platform, Customer authorizes Adder, its affiliates, licensees, agents, or third-party service vendors (“Partners”) to utilize Customer’s advertising materials (“Creatives”), geofence target zones (“Target Regions”) targeting lists (“Targeting Lists”), and any other information, as applicable, for the purpose of implementing Customer’s Orders, including, but not limited to, the formatting and placement of Customer’s advertising materials on any Internet website (an “Advertisement”). Customer is solely responsible for: (1) the content and operation of all Creatives, Objectives, Campaigns and Targeting Lists; (2) any website or other content to which Customer’s Creatives or Advertisements directs viewers (“Landing Pages”); and (3)any services or products displayed or advertised on Landing Pages.
Customer acknowledges that it is solely responsible for its or its End User’s (defined below) use of the Platform and for any access to or use of the Platform pursuant to Customer’s account, username(s), or password(s). Customer is responsible to safeguard access to its Adder account, username(s), and password(s). Customer shall only permit its employees, contractors, and End Users to access or utilize the Platform and only pursuant to these Terms.
Customer shall submit Creatives for any Order in the format specified in the Platform. All Creatives are subject to Adder’s and Adder’s Partners’ approval, to be exercised in their sole discretion. Adder shall use Customer’s Creatives solely to implement Customer’s Orders or as otherwise directed by Customer. Adder may, in its sole discretion, resize Customer’s Creatives to serve Advertisements in a different sized ad unit. Adder will destroy Customer’s Creatives within thirty (30) days of the completion of any Order, unless otherwise directed by Customer.
Customer shall submit all IP and GPS Target Regions/Conversion Targets to Adder in the format specified in the Platform. Adder shall use Customer’s Target Regions/Conversion Targets solely to implement Customer’s Orders or as otherwise directed by Customer. Adder will destroy Customer’s Targeting Lists within thirty (30) days of the completion of any Order, unless otherwise directed by Customer.
Adder reserves the right to reject or remove any specific Creatives or Targeting Lists from the Platform at any time and for any reason. Adder may, at its discretion, require Customer to modify any Creatives or Targeting Lists. Adder may suspend or terminate any Customer’s use of the Platform at any time and for any reason.
Customer has been informed and understands that scheduled or expected advertising impressions or other Product services may not be delivered or may be delayed due to various reasons, including, but not limited to, disruptions in the Platform caused by limited availability of inventory, power outages, acts of God, equipment malfunction, service maintenance or upgrades, third-party vendor error, or Adder error. Customer acknowledges that Adder shall have no liability for Adder’s inability or failure to deliver advertising impressions or other services for any reason, including Adder’s negligence or carelessness.
Customer shall not use the Platform in any manner not authorized or permitted by Adder.
Customer shall not modify, reverse engineer, or alter the Platform in any manner. Customer shall not allow third parties to view the Platform, nor shall Customer provide images, screen captures, or other descriptions of the Platform or its operation to third parties, except as provided in these Terms.Customer will not, directly or indirectly; (i) generate automated, fraudulent, or otherwise invalid impressions, inquiries, clicks, or conversions; (ii) conceal conversions where they are required to be disclosed; or (iii) use any automated means or other form of scraping or data extraction to access, query, or otherwise collect advertising-related information from the Platform except as expressly permitted by Adder.
In the event Customer uses a third-party ad server to host Customer’s Creatives and/or to serve Advertisements, Customer acknowledges that Adder shall not be responsible for such third-party ad server’s failure to deliver any impressions or to otherwise perform its services. As set forth below, Adder’s fees for any Orders shall be determined based solely on Adder’s metrics, notwithstanding the possibility that a third-party ad server may obtain different metrics with respect to the same Order.
Cancellation or modification of Orders
Customer may modify or cancel any Order as specified on the Platform’s user interface. Customer agrees that it shall be bound by such procedures in effect at the time any Order is placed and that Customer shall have no right to cancel Orders or receive any refund or credit other than as specified on the Platform. In the event Customer attempts to cancel or modify an Order, but Adder serves Advertisements prior to such cancellation or modification taking effect, Customer shall pay all such fees associated with such served Advertisements.
If, for any reason, Customer cannot access its account on the Platform, Customer shall contact its designated account representative at Adder or contact Adder at email@example.com to request cancellation of any Order.
CUSTOMER’S END USERS
In the event Customer utilizes the Platform on behalf of any third party or Customer authorizes a third-party to access the Platform through Customer’s account (such third parties, “End User”), Customer warrants that it has provided a copy of these Terms to such End User and that End User agrees to be bound by these Terms, including, but not limited to, the “Privacy Disclosures” set forth in Section V, as if End User were a “Customer” hereunder, except with respect to Customer’s payment obligations. Customer warrants further that in the event it utilizes the Platform to place Orders on behalf of any End User, it is authorized to act on behalf of such End User. Notwithstanding any End User, Customer is and shall remain bound to comply with all obligations under these Terms with respect to any Order placed through Customer’s account, including, but not limited to, all Customer warranties with respect to Creatives and Targeting Lists, and obligations of indemnification and payment, with respect to any use of the Platform pursuant to Customer’s account. Customer’s payment obligations hereunder are not contingent upon or limited by Customer’s receipt of payment by any End User.
Notwithstanding the disclosure of any End User to Adder, no End User shall be a Party to or third-party beneficiary under these Terms, and no End User shall have any right to enforce these Terms.
Customer warrants and represents that:
Customer and/or any End User holds all rights to and in the Creatives and Targeting Lists necessary and sufficient for Adder and its affiliates or Partners to provide services with respect to any Order and that Customer or any End User is authorized to and hereby does grant to Adder and its affiliates and Partners all rights and licenses in and to the Creatives and Targeting Lists in order to provide such services.
The Creatives and any other material, image, file, or document Customer or End User transmits to Adder do not contain any untrue, defamatory, harmful, abusive, obscene, or pornographic materials; are in compliance with all applicable laws, statutes, and regulations; and do not infringe upon the rights of any other person, including, but not limited to, copyrights, trademarks, privacy rights, moral rights, trade secrets, patents, and any other right.
The Creatives and any other material, image, file, or document Customer or End User transmits to Adder do not contain any malware, spyware, or other malicious code.
Customer’s or End User’s acquisition, retention, and provision to Adder of the information contained in Targeting Lists are in compliance with all applicable laws, statutes, and regulations and do not infringe upon any right of any other party, including, but not limited to, copyrights, trademarks, privacy rights, moral rights, trade secrets, patents, and any other right.
Customer has the full and complete authority to enter into these Terms and perform its obligations hereunder. Customer’s performance of its obligations under these Terms will not violate or breach any other agreement to which Customer is a party or is bound.
Customer is aware that Adder has authorized third-party agents and resellers to sell Adder’s Products, either under Adder’s brand or under such third-party’s brands. Customer represents and warrants that, in the 180 days prior to executing these Terms, no Adder agent or reseller has attempted to sell Adder’s Products to Customer.
REQUIRED PRIVACY DISCLOSURES
0.0.0.1. “Interest-Based Advertising and IP Targeting: We may work with data providers to serve advertising to you through display media or other methods. These providers may use personal information that we have collected or that you have provided to locate you online, such as when you visit or log in to websites or mobile applications. This information may be linked to online identifiers or IP addresses assigned to you and to demographic or interest-based data, in order to target you with relevant advertising, including information about our products or services. To learn more about or to opt out of this and other interest-based advertising, please visit the industry opt-out pages operated by the DAA at http://www.aboutads.info and by the NAI at http://networkadvertising.org.”
Fees and other charges for each Product are set forth on the user interface for the Platform in connection with placing an Order.Customer will pay all fees and charges, including applicable taxes, if any, incurred on its account in connection with the Platform, within 30 days of invoice from Adder, in U.S. dollars, and in immediately available funds. Past due amounts incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are solely based on Adder’s measurements for the Platform and the applicable billing metrics (e.g., CPM, and impressions) specified for the Product(s) in question.
Any portion of a charge not disputed in good faith must be paid in full. Customer may not offset any payment due under these Terms against any other payment to be made under these Terms. Adder may, in its sole discretion, extend, revise, or revoke credit to Customer at any time.
Adder reserves the right to require Customer to prepay for any or all Orders. Adder will return any unused, pre-paid amounts to Customer, without interest, upon Customer’s request.
Customer will pay all of Adder’s expenses, including reasonable attorneys’ fees, in connection with collecting late payments.
Adder may, in its sole discretion, suspend Customer’s access to the Platform and/or cancel all or any portion of Customer’s orders until all past-due amounts are paid.
TERM AND TERMINATION
Either Party may terminate these Terms at any time by written notice to the other Party, but Adder will not cancel any Order unless that Order is cancelled pursuant to procedures set forth on the Platform. Customer shall remain obligated to pay any fees and charges associated with any Order that is not cancelled through the Platform’s user interface or with any services provided prior to such cancellation taking effect.
Adder may modify, amend, add to, or delete from these Terms at any time, in its sole discretion, and without any liability. Adder will post any modified Terms on the Platform. Customer should review these posted Terms frequently. Any changes to the Terms shall apply prospectively and not retroactively. By continuing to utilize the Platform after Adder posts modified Terms, Customer agrees to be bound by the modified Terms.
Any modifications to these Terms other than pursuant to Section 7.2 hereof must be in writing, signed by both Parties, and must expressly state that it is amending these Terms. Sections 1.2, 6 through 15 will survive termination of these Terms.
DISCLAIMER OF WARRANTY
TO THE EXTENT PERMITTED BY LAW, CUSTOMER ASSUMES FULL RESPONSIBILITY FOR USE OF THE PLATFORM AND USES THE SAME AT ITS OWN RISK. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY ADDER, ITS AFFILIATES, PARTNERS, OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT ADDER’S PARTNERS DO NOT MAKE ANY WARRANTIES TO CUSTOMER UNDER THESE TERMS AND ADDER DOES NOT MAKE ANY WARRANTIES ON BEHALF OF SUCH SERVICE PROVIDERS UNDER THESE TERMS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY.
LIMITATION OF LIABILITY
Except for the indemnification obligations set forth in Section 10 of these Terms, in no event shall either Party be liable to the other Party for any incidental, indirect, consequential, special, or punitive damages arising out of or relating to these Terms, any Order, or any service provided hereunder, regardless of whether such Party had been advised of the possibility of such damages, including, but not limited to, claims for lost revenue, loss of potential clients, or loss of potential business opportunity. In no event shall Adder’s affiliates, Partners, or suppliers have any liability to Customer or any End User hereunder. Adder shall not be responsible for any losses or damages arising as a result of the unavailability of the Platform for failure to serve any Advertisement or implement any Order.
Adder’s aggregate liability to Customer, for any reason and all causes of action arising out of or relating to these Terms or any Order (including, but not limited to, contract, tort (including negligence), and strict product liability), shall be limited to the lesser of: (a) the fees paid or owed by Customer to Adder under the Order that is the subject matter of the claim or (b) the total fees paid by Customer to Adder in the six months preceding the dispute at issue.
Customer agrees to indemnify, defend, and hold harmless Adder and any and all of its subsidiaries and affiliates and their respective past and present officers, directors, managers, agents and representatives, employees, and Partners, including any third party providing any service in connection with the Platform (collectively “Adder Indemnitees”) from and against any and all third-party claims, actions, suits, and proceedings, which may at any time be brought against the Adder
INTELLECTUAL PROPERTY RIGHTS
NO TRANSFER OF TITLE
Adder owns all right, title, and interest in all intellectual property constituting, delivered through, or otherwise associated with the Platform, including advertisement serving technology, geographic location targeting technology, Platform technology, Platform control panel technology, and Platform features, including implied licenses. All materials, including, but not limited to, any documents, data, software, and information provided by Adder to Customer; any identifiers or passwords used to access the Platform or otherwise provided by Adder to Customer; and any know-how methodologies or processes, including, but not limited to, all copyrights, trademarks, patents, trade secrets, any other proprietary rights inherent therein and appurtenant thereto (collectively, “Adder Proprietary Information”), used by Adder in connection with the Platform or to provide Products under these Terms shall remain the sole and exclusive property of Adder or its affiliates or partners.Notwithstanding anything above, Adder shall not own or acquire any rights in Customer’s Creatives or Targeting Lists, other than as necessary to provide Products or services under these Terms.
Customer and End Users shall not acquire any interest in the Platform or Adder Proprietary Information, by these Terms or by virtue of the payments provided for herein. Customer and End Users may not disassemble, decompile, reverse engineer, reproduce, modify, or distribute the Adder Proprietary Information, in whole or in part, or use them for the benefit of any third party. All rights in the Adder Proprietary Information are reserved to Adder.
Adder agrees to maintain in confidence, not to disclose to third parties or otherwise use, except for such use in connection with the Platform, Products, Orders, or, as is expressly permitted herein, Targeting Lists or any information therein provided by Customer to Adder pursuant to these Terms or in connection with any Order.
Customer hereby authorizes Adder to utilize Customer’s name and logo in connection with Adder’s promotional materials, including the placement of Customer’s logo on Adder’s website.
In the event Adder is obligated by law, through proper service of a subpoena, interrogatory, request for documents, civil investigative demand, court proceeding, or similar process, to disclose Customer’s Targeting Locations, Lists, or other provided parameters, Adder shall provide prompt written notice to Customer, along with a copy of such demand, and Customer may, in its discretion and at its sole expense, seek to obtain a protective order or other appropriate remedy to protect against such disclosure.
AND CLAIMS FOR NON-PAYMENT OF FEES
Except with respect to any claims by Adder against Customer for unpaid fees, the Parties hereto agree, irrevocably, to submit any dispute arising under or concerning these Terms or the Service to binding arbitration, on an individual basis, administered by the American Arbitration Association (“AAA”) and pursuant to the Commercial Rules thereof. TO THE EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT IT SHALL NOT BRING ANY CLAIM AGAINST Adder ARISING OUT OF THESE TERMS OR CUSTOMER’S OR ANY END USER’S USE OF THE PLATFORM, PRODUCT, OR ANY ORDER, AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR AS ANY PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY. CUSTOMER AGREES THAT IT CANNOT COMBINE ITS INDIVIDUAL CLAIMS WITH CLAIMS OF OTHERS WITHOUT THE CONSENT OF ALL PARTIES.
No claim by Adder against Customer for unpaid fees shall be submitted to arbitration, whether individually or as part of a larger proceedings, and Customer shall not assert the pendency or possible pendency of any arbitration as a defense to payment of any fees hereunder. With respect to any unpaid fees and accrued interest, Adder may bring a civil action against Customer to collect such payment. The Parties agree to submit such dispute to the exclusive jurisdiction of the federal or state courts located in Louisville, Kentucky, and the Parties agree to submit to the personal jurisdiction of said court and to waive any objection to venue lying with said court.To the extent permitted by law, before either Party may commence an arbitration with respect to a dispute involving any aspect of these Terms, such Party shall provide written notice to the other Party for the purpose of resolving the dispute in good faith. If the dispute is not resolved within sixty (60) days after the initial notice, then a Party may proceed in accordance with this Section 13. Notice of demand for an arbitration hearing shall be in writing and properly served upon the Parties to these Terms as specified in Section 15. Arbitration hearings shall be held in Louisville, Kentucky or at a location agreeable to the Parties.
All costs of the arbitration and the AAA shall be borne equally by both Parties to these Terms, regardless of the final decision. Each Party shall bear its own costs, including attorneys’ fees, arising out of any dispute between the Parties concerning these Terms. Any panel constituted to hear and decide a dispute between the Parties shall not be empowered to award attorneys’ fees as part of any award.
These Terms, including any disputes over its terms, shall be governed by the laws of the Commonwealth of Kentucky without regard to conflicts of law.
Interpretation and Enforceability: The language of these Terms shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against any Party, regardless of who drafted these Terms or was primarily responsible for the drafting of any language contained herein.
Each Party waives the application of any law, regulation, doctrine, holding, or rule of construction that ambiguities in an agreement will be construed against the drafter. Should any Court or Panel find any provision to be unenforceable or contrary to public policy, then such offensive provision shall be deemed stricken and the remainder of these Terms shall nevertheless remain in full force and effect.
No Guarantee of Results:
Customer acknowledges that Adder is not making and has not made any warranty, representation, or guarantee of the success of any advertising campaign instituted on or in connection with the Platform.
Other Remedies; Specific Performance:
Any and all remedies herein expressly conferred upon Adder will be deemed cumulative and not exclusive of any other remedy conferred hereby or available in law or equity, and the exercise by Adder of one remedy will not preclude Adder from exercising any other remedy. Nothing in these Terms is or will be deemed to be a waiver of the right to obtain specific performance or injunctive relief. Customer acknowledges that Customer’s failure to perform any provision of these Terms according to its terms or Customer’s breach of any warranty will result in irreparable damage to Adder and, accordingly, Adder will be entitled to seek, at its discretion, and obtain injunctive relief preventing breaches of these Terms or to enforce specifically the terms of these Terms, in addition to any other remedy to which Adder is entitled.
Notwithstanding anything to the contrary contained herein, Adder shall have no liability hereunder due to circumstances beyond its control, including, but not limited to, acts of God,terrorism, flood, fiber cuts, natural disaster, regulation or governmental acts, fire, power surges or outages, civil disturbance, weather, or any unauthorized access to or destruction or modification of the Platform, in whole or in part (each a “ Force Majeure Event”).
No Agency, Joint Venture, or Other Relationship:
The Parties acknowledge that they will not hold themselves out as an agent, partner, or co-venturer of the other and that these Terms are not intended and do not create an agency, partnership, joint venture, or any other type of relationship, except the contract relationships established hereby. The Parties acknowledge that these Terms do not create a fiduciary relationship between the Parties.
Non-Assignability; Transfer of Customer Account(s) on the Platform: Adder may assign its rights and obligations under these Terms: (1) to any affiliate or (2) in connection with any merger or sale of a fifty percent (50%) or more equity interest to any person or entity, without the prior written approval of or notice to Customer, provided that such assignee assumes all of Adder’s rights and obligations hereunder, including obligations of payment and indemnification. Customer may not assign its rights and obligations under these Terms or assign or transfer its Adder account to any party other than an affiliate, and then only if (1) Customer provides Adder with prior written notice of such assignment and Adder approves of such assignment in writing; (2) assignee agrees in writing to be bound by
these Terms and to assume any of Customer’s outstanding payment obligations hereunder; and (3) Customer agrees to remain liable for assignee’s obligations hereunder, including, but not limited to, all warranties, payment and indemnification obligations.
Failure to Exercise Rights:
Either Party’s failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
No waiver of any provision ofthese Terms is effective unless in writing and signed by both Parties.
Entire Agreement; No Reliance:
These Terms, including any applicable policies and terms set forth on the user interface of the Platform, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, and representations, both written and oral, among the Parties with respect to the subject matter hereof. These Terms are solely for the benefit of the signatories to it; there are no third-party beneficiaries to these Terms (except for those third-party indemnitees specified in Section 11).
Any notice, approval or disapproval, consent, request, demand, or other communications under these Terms (each a “Notice”), including any change to this Section, shall be in writing and shall be given:
0.0.1 In the case notice to Adder: (i) by hand delivery, (ii) by nationally recognized courier service, or (iii) by prepaid certified mail, to the attention of the person listed below at the addresses set forth below, in addition to delivery by electronic mail as noted. Each Notice shall be effective: (a) if delivered by hand or by nationally recognized courier service, when received at the address specified in this Section and (b) if given by certified mail by a signed return
0.0.1.1. To: Adder
0.0.1.2. 10482 Bluegrass Parkway
0.0.1.3. Louisville, Kentucky 40299
0.0.1.4. Attn: Adder Legal Dept.
0.0.1.7. With copy (not sufficient to constitute Notice to Adder) to:
0.0.1.9. Stefan J. Gerwinat, Esq.
0.0.1.10. Schultis Law Group
0.0.1.12. New York, NY
0.0.1.13. Attn firstname.lastname@example.org
0.0.2 In case of notice to Customer, at the email address provided in Customer’s
account. Customer is obligated to ensure that its account information and contact email
address are up-to-date.
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