UK Master Services Agreement

AdCellerant UK Master Services Agreement

This AdCellerant Master Services Agreement (“Agreement”) effective as of the date of the Subscription Order Form (the “Effective Date”), is entered into by and between AdCellerant UK Ltd, company incorporated in England and Wales with company number: 16397522 (“AdCellerant”), and the party listed in the Subscription Order Form (“Customer”). AdCellerant and Customer are each a “Party” and collectively, the “Parties”.

Upon execution of the Subscription Order Form, the Parties agree to the terms of the Subscription Order Form and the terms of this Agreement.

1. DEFINITIONS

“Advertiser(s)” means the customers to whom Customer sells Resale Services.
“Advertiser Agreement(s)” means an agreement between Customer and an Advertiser that governs the specific resold services and products that Advertiser purchases from Customer.
“Confidential Information” means all information that is written, graphic, machine-readable, or in any other form and is marked “confidential”, “proprietary”, “source code”, or in some other manner to indicate its confidential nature, or which under the circumstances of disclosure would be considered as confidential by a reasonable person. Confidential Information includes all information furnished by AdCellerant in the performance of the Direct Services, Documentation, and the terms and pricing under this Agreement and any Subscription Order Form.
“Customer Content” means Customer’s (or a User’s) data stored in connection with the Direct Services and any and all material uploaded by Customer or a User onto the servers in connection with the Direct Services or provided by Customer in accordance with this Agreement.
“Customer’s Equipment” means any equipment, including tools, systems, cabling or facilities, belonging to the Customer, its agents, subcontractors or consultants which AdCellerant will require access to, or use of, directly or indirectly in order to supply the Direct Services.
“Direct Service(s)” means the direct software services purchased and accessible by the Customer, that are detailed in a Subscription Order Form.
“Documentation” means any documentation that AdCellerant generally distributes to the Users or the Customer for the purposes of assisting (i) the User in the use of such Direct Services, and (ii) the Customer in the onward sale or promotion of any Resale Services.
“Downtime” includes but is not limited to: (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs that AdCellerant may undertake from time to time, or (iii) causes beyond the control of AdCellerant or which are not reasonably foreseeable by AdCellerant, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, Internet failures or other failures.
“Fees” means all charges and fees due and payable by the Customer under this Agreement in accordance with the Subscription Order Form(s), including but not limited to all Set-up Fees, Monthly Fees, and Resale Service Fees, each as defined in clause Error! Reference source not found..
“Hosted Materials” means the hosted environment, including, without limitation, the Technology, applicable server hardware, disk storage, firewall protection, server operating systems, management programs, Web server programs, documentation and all other information developed or provided by AdCellerant or its suppliers under this Agreement, as well as all other audio and visual information, documents, software, products and services contained in the Direct Services or made available to Customer in the course of using the Direct Services.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and rights in domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Ordering Platform” means AdCellerant’s online order management system through which the Customer can place an order, complete any necessary Subscription Order Form, and obtain details regarding the Services, Fees and any other such information determined by AdCellerant to be required in the provision of the Services.
“Registration Data” means any information that is requested by any registration forms AdCellerant provides for the Resale Services.
“Resale Service(s)” means the services that are detailed in the Subscription Order Form, or otherwise made available to Customer on the Ordering Platform, which the Customer is then permitted to resell to Advertisers.
“Service(s)” means both Direct Services and Resale Services.
“Subscription Order Form(s)” means an order form or similar document submitted and agreed through the Ordering Platform (or other such ordering system or method accepted or agreed from time to time by AdCellerant in writing), executed by authorized representatives of both Parties that, when completed, sets forth the Services ordered by Customer from AdCellerant, all applicable fees, certain restrictions, and any other terms that AdCellerant and Customer agree upon.
“Technology” means all of AdCellerant’s proprietary technology (including the Ordering Platform, Hosted Materials, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by AdCellerant.
“User(s)” means any subscriber (or representative or personnel of a subscriber) who uses the Direct Services solely to create ads, proposals, reports in the usual course of its business, or the business of the company or organization to which such subscriber is acting for or on behalf of, tied to reports marketing and proposals marketing.
“Work Product” means any advertisement mockup, proposal, recommendation, or other such output of the Services as specified in a Subscription Order Form(s) or as otherwise agreed in writing, provided by AdCellerant to Customer through the Resale Services which is based on Customer’s data or materials.
“VAT” means value added tax or any equivalent tax chargeable in the UK or elsewhere.

2. TERMS SPECIFIC TO DIRECT SERVICES

Direct Services. Subject to this Agreement, AdCellerant will provide Customer with access to those Direct Services which are detailed in the applicable Subscription Order Form.
Hosted Materials. In connection with the provision of the Direct Services, AdCellerant and its subcontractors may install, operate, and support the Hosted Materials on the Customer Equipment.
Availability of Direct Services. Subject to this Agreement including clause Error! Reference source not found.d regarding Downtime and 8b regarding the Service Level Agreement, AdCellerant shall use commercially reasonable efforts to provide the Direct Services twenty-four (24) hours per day, seven (7) days per week throughout 99% of the time during the term of the applicable Subscription Order Form.
Customer agrees that from time to time the Direct Services may be inaccessible or inoperable for various reasons, including Downtime. AdCellerant shall use commercially reasonable efforts to provide 24-hour advance notice to Customer in the event of any scheduled Downtime. The Parties agree that AdCellerant has no obligation during Downtime to mirror or transfer Customer Content onto any other server. AdCellerant shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Direct Services in connection with Downtime, whether scheduled or not.
Privacy Policy; Personal Data; The collection, use, and storage of User’s personal information (as defined in the Privacy Policy) through the Technology is governed by (i) AdCellerant’s privacy policy located at Privacy Policy, (“Privacy Policy”) and available here, and/or where applicable (ii) AdCellera’t’s Data Privacy Terms as referenced in clause here, and/or where applicable (ii) AdCellerant’s Data Privacy Terms as referenced in clause 4i below.

3. LICENSE GRANTS

License of Customer Content. In order to enable AdCellerant’s performance of its obligations under this Agreement, Customer grants to AdCellerant, and AdCellerant accepts from Customer, a non-exclusive, worldwide, royalty-free license to copy, modify, display, store, use, transmit, and display (including on and via the Internet) the Customer Content, solely to the extent necessary to provide the Direct Services to Customer in accordance with this Agreement and/or for internal use to build or improve the quality of its services for Customer. Customer grants to AdCellerant a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free license, to use, copy, process, and reproduce, Usage and Reporting Data (as defined below) to provide and improve the Direct Services, provided that no individual element of the Usage and Reporting Data, alone or in combination with any other data element, can be used to identify Customer, Customer’s Advertisers or any individual. Usage and Reporting Data is defined as any aggregate data or information that results from Customer’s use of the Direct Services or is derived from the use of the Direct Services, including reports or reporting information generated by, and/or data related to performance metrics and other measurements, of Customer’s Advertiser’s campaigns.
License Grant to Customer. Subject to the terms and conditions of this Agreement, upon the execution of a Subscription Order Form by AdCellerant and Customer, AdCellerant grants to Customer a non-exclusive, non-transferable license, solely during the term of the applicable Subscription Order Form, to access and use the Direct Services, as well as the accompanying Documentation (as relevant to the Direct Services), solely for Customer’s internal use, and solely in accordance with the applicable Subscription Order Form.

4. TERMS SPECIFIC TO RESALE SERVICES

Scope of Resale Services. Upon execution of this Agreement, AdCellerant shall grant Customer access to the Ordering Platform, through which Customer may submit orders for Resale Services, such order once approved and executed by the parties in accordance with this Agreement shall form a Subscription Order Form. All orders submitted through the Ordering Platform are final, and all fees paid for Resale Services are non-refundable.
Third Party Services. Some Resale Services provided through the use of the Ordering Platform may rely on integration with, or make use of data from other websites, or services, and software, e.g., Facebook, Google (“Third Party Services”). Customer agrees (and through the relevant Advertiser Agreement, will ensure its Advertisers agree) to be bound by the terms of service of any Third Party Services, including any data privacy or advertising terms applicable to any data that Advertisers disclose to, make available to, or otherwise exchange with, a Third Party Service, used in connection with the Services and that they are solely responsible for ensuring their use of the Third Party Services is in compliance with such terms of service. Customer understands and acknowledges that AdCellerant does not own or operate any such Third Party Services and AdCellerant makes no representation or warranties in connection with such Third Party Services, including with respect to Customer and Advertiser’s use of such Third Party Services as integrated and made available through the Ordering Platform. AdCellerant hereby disclaims all liability in connection with Customer and Advertiser’s use of such Third Party Services, including with respect to any data provided or processed by such Third Party Services. Resale Services offered by AdCellerant may change at any time based on the services and terms of service offered by the Third Party Services.
Non-Exclusivity. Customer’s engagement of AdCellerant hereunder is a non-exclusive engagement and shall not limit Customer’s right to engage third parties for the provisions of similar or complementary products or services (including, without limitation, other consultants and/or independent contractors).
Engagement of Customer. AdCellerant appoints Customer as a non-exclusive reseller of the Resale Services, in Customer’s name, in accordance with this Agreement.
Resale Pricing. Customer will set the price that it will charge Advertisers for the Resale Services at Customer’s sole discretion. Customer may determine the fees charged to Advertisers for the Resale Services and shall be solely responsible for all billing and other contractual arrangements with Advertisers. The Ordering Platform contains the recommended prices in respect of the Resale Services these prices are recommendations only and AdCellerant shall have no liability for any matters arising from the Customer’s chosen pricing.
Advertiser Breach. No failure of any Advertiser to pay Customer, or any other breach or failure by any Advertiser, shall under any circumstance relieve Customer of any of its obligations to AdCellerant under this Agreement.
AdCellerant Policies. AdCellerant will advise Customer of any standards or policies of which AdCellerant is aware relating to the use, protection, operation, and/or re-sale of Resale Services, and Customer shall comply with all such standards and policies that may be in effect and as may be amended from time to time.
Advertiser Agreements. Before Customer resells the Resale Services, Customer shall enter into a valid, fully-executed, Advertiser Agreement with each Advertiser. Customer shall ensure that such Advertiser Agreements:
1. 1. shall not exceed a term longer than the duration of this Agreement, or as appropriate the duration of any Resale Services under the relevant Subscription Order Form or as confirmed in the order process through the Ordering Platform;
  2. terminates in the event that AdCellerant stops providing Resale Services to Customer for any reason, as permitted by this Agreement;
  3. limits AdCellerant’s liability to the same degree and to the extent that AdCellerant’s liability is limited under this Agreement. In the event that the Customer’s liability to an Advertiser exceeds that of AdCellerant’s capped or limited liability under this Agreement, AdCellerant shall have no liability to the Customer for the difference between Customer’s liability to an Advertiser and AdCellerant’s capped or limited liability under this Agreement;
1. require Advertisers to protect any Confidential Information of AdCellerant that they encounter as a result of the Resale Services (which provisions shall be at least as restrictive as those contained herein);
2. forbid Advertisers from reverse-engineering, decompiling, disassembling, or otherwise attempting to replicate, copy, or make derivative works of the Resale Services;
3. require all Advertisers to be in compliance with all rules, regulations, policies and laws applicable to their use of the Resale Services, including without limitation applicable data protection and data privacy laws, including any applicable legally required privacy policies, consumer notices, consents and opt-outs, and advertising industry regulations and guidelines, including but not limited to all applicable advertising standards, export control, and anti-bribery laws.
Data Privacy Terms. As a general matter, Customer does not disclose or make available to AdCellerant personal information for processing, as those terms are understood under the Applicable Privacy Laws in the Data Privacy Terms, available [here]. To the extent Customer, or its Advertisers, disclose or make available personal information to AdCellerant in connection with the Resale Services, the collection, use, and processing of such personal information shall be governed by the Data Privacy Terms which shall be incorporated into the Agreement and form an integral part of the Agreement.
In respect of Customers and/or Advertiser’s based in the United States only, the Customer shall determine whether an Advertiser is a covered entity under the Health Insurance Portability and Accountability Act of 1996 and its associated regulations (collectively, “HIPAA”). In the event that a Customer determines that an Advertiser is a covered entity under HIPAA, Customer shall promptly notify AdCellerant in writing before placing any orders on behalf of such Advertiser and comply with the following: If an Advertiser is a covered entity under HIPAA, Customer shall (i) notify the Advertiser, prior to selling it any call tracking and/or chat widgets service or related offerings, that the use of such services is subject to the Advertiser’s agreement to, and execution of, the HIPAA Business Associate Addendum between the Advertiser and the Customer (“Advertiser BAA”) to be provided by AdCellerant to Customer upon request, and (ii) execute the HIPAA Business Associate Addendum between AdCellerant and Customer (“Customer BAA”) to be provided by AdCellerant to Customer upon request. The applicable services subject to the Advertiser and Customer BAAs shall be identified in Appendix 1 to the BAA Addenda. Customer shall refer all Advertiser questions or requests for changes related to the Advertiser BAA to AdCellerant and acknowledges that it has no authority to negotiate, modify, amend, or waive any of the terms of the Advertiser BAA without AdCellerant’s written approval. AdCellerant shall be under no obligation to fulfill any orders related to the services described above until Customer and Advertiser comply with the terms of this section 4(g). With the exception of the services identified in this section 4(g), Customer shall not (and will cause its Advertisers to not) disclose or transfer to AdCellerant any personal health information as defined under HIPAA or Sensitive Personal Data as defined in the Data Privacy Terms. For the avoidance of doubt, this clause 4j shall only be applicable when the Customer, or an Advertiser is based in the United States.

5. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS

For Direct Services.
1. Except as otherwise provided in this Agreement, Customer shall:
  1. be solely responsible for providing, updating, uploading, maintaining, and ensuring the accuracy of all Customer Content. Customer agrees that AdCellerant will not be responsible for nonconformities or any errors in the Direct Services resulting from AdCellerant’s reliance on inaccurate, inauthentic, or incomplete data or Customer Content;
  2. cooperate with AdCellerant and take all measures necessary to ensure compliance by all Users with all terms and conditions of this Agreement;
  3. indemnify, defend, and hold AdCellerant and its officers, members, employees, and agents harmless from and against any claims, and any associated losses, liabilities, damages, and costs incurred by AdCellerant, its officers, members, employees, or agents arising out of any breach or violation of this Agreement by Customer or any of its Users. AdCellerant reserves the right to terminate the access of any User to the Direct Services in the event of any such violation, in addition to its other remedies hereunder; and
  4. require its Users to comply with applicable local laws restricting export of any software, technical data, or other information or materials, and shall not export any software, technical data or other information or materials to any country in violation of such laws.
2. Restrictions. Customer shall not, and shall ensure its Users do not:
  1. modify, adapt, resell, rent, lease, loan, create, or prepare derivative works based on the Direct Services, Technology, Documentation, Hosted Materials, any of AdCellerant’s other Intellectual Property Rights, or any part thereof;
  2. use the Direct Services as a service bureau, as an application service provider, to perform consulting or training Direct Services for a third party, or in any other such commercial arrangement;
  3. use the Direct Services in contravention to any applicable laws or government regulations;
  4. decompile, disassemble, or otherwise reverse engineer the Direct Services or the Technology;
  5. remove any proprietary labelling, branding, notice or other such Intellectual Property Rights contained within the Direct Services or remove, alter, or modify any AdCellerant logo found on the Direct Service’s user interface(s); or
  6. use the Direct Services to: (a) upload or otherwise transmit any Customer Content that is unlawful, threatening, harmful, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Content transmitted through the Direct Services; (e) upload or otherwise transmit any Customer Content that Customer or User does not have a right to transmit under any law or under contractual relationships; (f) upload or otherwise transmit any Customer Content that infringes or violates any patent, trademark, trade secret, copyright, or other intellectual property or proprietary rights of any person; (g) upload or otherwise transmit any material that contains software viruses or any other malicious computer code, files or programs designed to interrupt, destroy, breach the security, or limit the functionality of any computer software or hardware or telecommunications equipment; or (h) interfere with or disrupt the Direct Services or networks connected to the Direct Services.
3. For Resale Services.
  1. Responsibilities. Customer shall:
    1. provide AdCellerant with, maintain, and promptly update Registration Data, and any other information it provides to AdCellerant;
    2. maintain the security of its username(s) and password(s), ensure the Users maintain such security, and notify AdCellerant where there has been a breach of the same;
    3. use its all reasonable endeavours to promote the distribution and sale of the Resale Services, to expand the sale of the Resale Services by all reasonable and proper means, and not to do anything which may hinder or interfere with such sales;
    4. accept all risks of access to the Resale Services using Customer’s Registration Data or username(s) and password(s); and
    5. comply with all applicable laws in performing this Agreement and in connection with the reselling of Resale Services.
  2. Restrictions. Customer shall not:
    1. misrepresent AdCellerant, the Resale Services, or its relationship with AdCellerant or the Resale Services in any way;
    2. reverse engineer any Resale Service (to the extent such restriction is permitted by law);
    3. use the Resale Services to store or transmit harmful, infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
    4. use the Resale Services to store or transmit harmful code;
    5. interfere with or disrupt the integrity or performance of any Resale Services or third-party data contained therein;
    6. attempt to gain unauthorized access to any Resale Services or related systems or networks;
    7. permit direct or indirect access to or use of any Resale Services in a way that circumvents a contractual usage limit or the terms of this Agreement;
    8. copy any Resale Service or any part, feature, function, or user interface thereof;
    9. copy any content accessed through the Resale Services except as permitted herein; or
    10. access any Resale Service or content in order to build a competitive product or service.

6. INTELLECTUAL PROPERTY

Work Product. Upon AdCellerant’s receipt in full and cleared funds of the applicable Fees, all rights, title, and interest in the Work Product will vest in Customer.
Services. Ownership of the Services, the Technology, any related Documentation, the Hosted Materials, copies, modifications, and derivatives of the foregoing (in whole or in part), and all related or pre-existing Intellectual Property Rights, are and will remain the exclusive property of AdCellerant. AdCellerant reserves all rights not expressly granted by it to Customer under this Agreement. For the avoidance of doubt, the Services are licensed, not sold to Customer, and no deliverables, work for hire, or other transfer of Intellectual Property Rights shall be made or implied by this Agreement.
Customer Content. All Customer Content submitted by Customer or a User to the Direct Services, whether posted by Customer or by third parties, shall remain the sole property of Customer or User, as applicable, unless otherwise agreed to in writing. AdCellerant reserves the right to withhold or remove Customer Content without notice for any breach or violation, including, without limitation, Customer’s non-payment, or a breach of clause Error! Reference source not found. by a Customer or any User. Upon termination for cause, Customer’s right to access or use Customer Content through the Services will immediately cease.
Certification. At AdCellerant’s written request and no more than once every twelve (12) months, Customer shall provide AdCellerant with a signed certification verifying that the Services are being used in strict accordance with the provisions of this Agreement and all Subscription Order Forms.
Audit. In addition to the foregoing, AdCellerant may, upon written notification to Customer, perform an audit of Customer’s use of the Services and Customer’s compliance with the provisions of this Agreement and all Subscription Order Forms. Any such audit shall be made at AdCellerant’s expense and shall occur during Customer’s normal business hours and not more than once per six (6) month period, except that if as a result of such audit, AdCellerant discovers that Customer has breached this Agreement or any Subscription Order Form, then Customer shall pay to AdCellerant the reasonable audit costs incurred by AdCellerant, and reasonable damages for such breach, including but limited to any license fees owed by Customer plus reasonable interest thereon.

7. FEES AND PAYMENT TERMS

Set-up and Monthly Fees. In consideration of the licenses to use and access the Direct Services provided hereunder, Customer shall pay AdCellerant the non-cancelable, non-refundable initial set-up fees set forth on the applicable Subscription Order Form (the “Set-up Fees”) and the recurring monthly fees set forth on the applicable Subscription Order Form (the “Monthly Fees”). The Set-up Fees and Monthly Fees for the first month shall be due and payable upon execution of the applicable Subscription Order Form. The Monthly Fees for all subsequent calendar months are due and payable thirty (30) days from the date of the applicable invoice.
Fees for Resale Services. Prices for Resale Services (“Resale Service Fees”) are listed on the Ordering Platform and are subject to change at any time and from time to time by AdCellerant in its sole discretion by updating such pricing on the Ordering Platform. AdCellerant shall provide Customer with a monthly invoice detailing the Resale Service Fees due. The Resale Service Fees are due and payable thirty (30) days from the date of the applicable invoice.
General Payment Terms. Customer shall pay all fees in Pound Sterling. Customer shall pay any and all taxes levied on any transaction under this Agreement, including all taxes (including VAT, local, federal or state taxes), levies, and assessments, excluding any tax based on AdCellerant’s net income.
Non-Refundable. Except as otherwise specifically set forth in this Agreement or in a Subscription Order Form, all fees are non-refundable.
Disputed Invoices. Customer will notify AdCellerant in writing within seven (7) days of receipt of an invoice of any dispute with respect to such invoice. If notice is not provided within seven (7) days from receipt of an invoice, said invoice shall be considered correct and payable. If Customer fails to provide such notice of a good faith dispute and fails to make one or more payments as required, AdCellerant will be entitled, in addition to any other available remedies, to suspend all Services.
Set-Off. All amounts due under this Agreement shall be paid by Customer to AdCellerant in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
If Customer fails to make any payment of any undisputed amounts due to AdCellerant under this Agreement by the due date for payment, then, without limiting AdCellerant’s remedies under clause Error! Reference source not found., Customer shall pay interest on the overdue amount at the rate of 4% a year above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.

8. REPRESENTATIONS, WARRANTIES, AND LIMITATIONS.

General. AdCellerant represents and warrants to Customer that: (i) AdCellerant possesses the requisite training, skills, and expertise to perform the Services; (ii) AdCellerant will render the Services with reasonable skill and care in accordance with good industry practice; (iii) the Services will be materially compliant with the purposes expressed in, as relevant, the Subscription Order Form, or as specified in the order on the Ordering Platform; (iv) AdCellerant will make best efforts to perform the Resale Services in accordance with the written time commitments agreed to on the Ordering Platform or any Subscription Order Form, if any, however the Parties agree that time is not of the essence for the performance of any of AdCellerant’s obligations in this Agreement or in a Subscription Order Form; (v) AdCellerant has the requisite ownership rights and licenses to fully perform its obligations under this Agreement and to grant to Customer all rights with respect to the Work Product.
For Direct Services. AdCellerant represents and warrants that the Direct Services will be provided in accordance with the service levels set forth in the Service Level Agreement, available [here] and will comply in all material respects with the description of the Direct Services found in the relevant Documentation. The foregoing shall not be construed as a warranty that the Direct Services will function without error, AdCellerant give no warranty that the Services shall be uninterrupted or error-free; as such, Customer hereby acknowledges that errors may exist in the Direct Services, and agrees that the presence of such errors shall not in and of itself be a breach of this Agreement. For any breach this clause Error! Reference source not found.b, Customer’s sole and exclusive remedy and AdCellerant’s entire liability shall be correction of the defect or error that caused that breach.
Limitation of Warranties. Except as expressly set forth above in sections 8.a and 8.b, AdCellerant and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services, technology, Documentation, hosted materials or any content; AdCellerant and its licensors do not represent or warrant that (i) the use of the Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (ii) the Services will meet customer’s requirements or expectations, (iii) any stored data will be accurate or reliable, or (iv) the Services or the server(s) that make the Services available are free of viruses or other harmful components. Except as expressly set forth above in sections 8.a and 8.b, the Services, technology, Documentation, hosted materials, all third-party products, and all content are provided to Customer and any user strictly on an “as is” basis; and all conditions, representations, and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by AdCellerant and its licensors.
Limitations and Delays. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. AdCellerant is not responsible for any delays, delivery failures, or other damage resulting from such problems.

9. CONFIDENTIALITY

Non-use and Non-disclosure. Each Party acknowledges that it may have access to Confidential Information of the other Party or certain third parties through this Agreement. Each Party shall maintain all Confidential Information as confidential, use commercially reasonable efforts to protect such Confidential Information, and shall not, directly or indirectly, disclose or reveal it to any third party, or seek to use it for any purpose, except as contemplated in this Agreement or as required by a court or governmental authority of competent jurisdiction, and after first notifying the disclosing Party of such disclosure requirement. Either Party may publicly disclose the existence of this Agreement, but neither Party may disclose details of the Agreement without written consent from the other Party.
Injunctive Relief. Both Parties acknowledge that any use or disclosure of the disclosing Party’s Confidential Information or Intellectual Property Rights in a manner inconsistent with the provisions of this Agreement will cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the aggrieved Party may be entitled hereunder, at law or equity, the aggrieved Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
Exceptions. The obligations in this Section 9 will not apply to Confidential Information that: (i) is already generally available to the public at the time of disclosure; (ii) hereafter becomes generally available to the public, through no fault of the receiving Party; (iii) is known by the receiving Party prior to the disclosure; (iv) becomes known through a third party under no obligation not to disclose it; or (v) information that is independently developed by or for the receiving Party without use of the Confidential Information or direction from any individual who has knowledge of that Confidential Information.
Term of Confidentiality Obligations. Notwithstanding the expiration or termination of this Agreement, the provisions of this Section 9 shall remain in effect for five (5) years following the expiration or termination of this Agreement.

10. TERM AND TERMINATION

Term. This Agreement and each Subscription Order Form shall commence on the Effective Date and shall continue in full force and effect for a term of two (2) years unless sooner terminated in accordance with clause 10.b below. This Agreement and each Subscription Order Form shall automatically extend for additional one (1) year terms unless one of the Parties provides notice to the other Party at least thirty (30) days prior to the end of the then-current term of its intention to terminate the Agreement or the Subscription Order Form effective at the end of the then-current term.
Fees Increase. AdCellerant reserves the right to update the Monthly Fees, applicable charges, and usage policies for each renewal term upon at least sixty (60) days prior written notice to Customer.
Termination. This Agreement and any Subscription Order Form may be terminated:
1. by Customer or AdCellerant, immediately upon prior written notice to the other Party in the event of a material breach of this Agreement by the other Party, if such breach continues uncured for a period of fourteen (14) days after written notice of such breach; or
2. by Customer or AdCellerant for its convenience upon ninety (90) days prior written notice to the other Party (in which event AdCellerant will be entitled to payment for all Services performed or provided through the effective date of such termination).
Effect of Termination. Upon the termination or expiration of this Agreement or any Subscription Order Form: (i) all applicable licenses and rights granted hereunder shall terminate and AdCellerant shall no longer provide Services to Customer; (ii) Customer shall cease and cause its Users to cease using the Services; and (iii) each Party will promptly return to the other Party or, at the other Party’s request, destroy, all Confidential Information of the disclosing Party, and provide the disclosing Party with an officer’s written certification, certifying the receiving Party’s compliance with the foregoing. Except as expressly provided herein, termination of this Agreement by either Party will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. All provisions of this Agreement that, by their nature, are intended to survive the termination of this Agreement shall survive such termination.

11. INDEMNIFICATION

General. Each Party (“Indemnifying Party”) shall promptly defend, at its own expense, the other Party, including the other Party’s respective directors, officers, members, employees, agents, successors, and permitted assigns (collectively, the “Indemnified Party”) from and against any and all third party claims, demands, suits, actions, inquiries, penalties, or fines (“Claims”) resulting from, to the extent arising out of or relating to, the Indemnifying Party’s (including its employees and anyone acting on its behalf) alleged or actual (i) gross negligence or willful misconduct that has caused personal injury or death or damage to or destruction of property, (ii) violation of any applicable law, (iii) disputes between the Indemnifying Party and its personnel, or (iv) violation of any Intellectual Property Rights or other rights of a third party resulting from, arising out of or relating to, (x) in the case of AdCellerant, the Services, or (y) in the case of Customer, the Customer Content or Customer’s use of the Services.
Advertiser Breach. Additionally, Customer shall indemnify, defend, and hold harmless the AdCellerant Indemnified Parties against any Claims arising out of or related to any breach of clauses 5a.ii and 5a.ii, any breach by any Advertiser of its contractual obligations listed in clauses 4b, 4h, 4i, and 4jof this Agreement, or otherwise originating from any of Customer’s Advertisers or other customers of Customer.
Third Party Damages. With respect to each Claim, in addition to its defense obligations, the Indemnifying Party shall promptly indemnify, and shall hold harmless, the Indemnified Party from and against any and all damages, judgments, awards, fines, penalties, expenses, and costs (including without limitation reasonable attorneys’ fees and expenses) that are awarded to the third party by a court or other authority or that are payable to the third party in a settlement made by the Indemnifying Party.
Licenses. Should any Services licensed hereunder, or any part thereof, become or, in AdCellerant’s exclusive opinion, be likely to become, the subject of a Claim through no fault of Customer, AdCellerant shall at its sole option either: (1) procure for Customer the right to continue using the Services or portion thereof, (2) modify the Services to make them non-infringing, or (3) failing (1) or (2), accept return of the affected Services and refund any Monthly Fees prepaid but not used by Customer for such Services.
Procedure. The Indemnified Party shall give the Indemnifying Party prompt written notice of any Claim. Failure or delay in giving notice does not diminish these indemnity obligations, unless and only to the extent that the Indemnifying Party’s ability to defend the Claim is affected thereby. The Indemnifying Party shall promptly confirm in writing that it will assume and control the defense or settlement of the Claim. The Indemnified Party shall reasonably cooperate at the Indemnifying Party’s expense. Any settlement that requires an admission of liability or payment by the Indemnified Party is subject to its written approval. If the Indemnified Party wishes to retain separate counsel, it may do so at its own expense.

12. LIMITATION OF LIABILITY

Except for each party’s confidentiality or indemnification obligations or any misappropriation or other infringement of a party’s Intellectual Property Rights, in no event will (a) either party, or their respective affiliates, officers, members, employees or agents, or AdCellerant’s licensors, be liable to the other for (i) loss of profits, business, (ii) use or data, or for interruption of business, or (iii) any other indirect, special, consequential, punitive, or incidental damages, whether based on breach of contract, tort (including negligence), or any other legal theory, even if advised of the possibility of such damages; and (b) either party’s liability under this Agreement exceed the amount of Fees paid by customer to company in the twelve (12) months immediately preceding the date on which the cause of action relating to such liability arose or, if less than twelve (12) months has elapsed since the commencement of this Agreement, the amount of Fees anticipated to be paid during the first twelve (12) months of this Agreement.
AdCellerant shall not be held liable for any losses of any kind incurred or alleged by any of Customer’s Advertisers or any other of its customers.

13. GENERAL

Nothing in this Agreement limits the ability of AdCellerant or Customer to enter into other agreements with third parties with respect to arrangements similar in nature to or the same as those covered under this Agreement.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect.
Entire Agreement. This Agreement (including the Data Privacy Terms, the Service Level Agreement, any Subscription Order Form, and any formal order accepted by AdCellerant through the Ordering Platform) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns.
Only a written instrument that refers to this Agreement and is duly signed by both authorized representatives of both Parties may amend this Agreement.
Modification due to Applicable Law. Without limiting the foregoing, in the event AdCellerant reasonably considers any modification to this Agreement is necessary to address the requirements of applicable law, Customer agrees to discuss and negotiate in good faith any such necessary modification, and Customer shall not unreasonably withhold or delay agreement to any consequential variation to this Agreement proposed by AdCellerant.
In the event of a conflict in terms among this Agreement and a Subscription Order Form (or any such other any formal order accepted by AdCellerant through the Ordering Platform) or any other terms that may exist between Customer and AdCellerant as agreed in writing, this Agreement shall prevail (unless the Subscription Order Form expressly states that it is to control in the event of such conflict).

14. NATURE OF RELATIONSHIP

Neither this Agreement nor the cooperation of the Parties contemplated under this Agreement shall be deemed or construed to create any partnership, joint venture, or agency relationship between the Parties. Neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other Party.

15. ASSIGNMENT

Neither Party may assign or otherwise transfer any right or delegate any obligation under this Agreement without the prior written consent of the other Party, except that AdCellerant may transfer its rights and obligations to a successor in interest or acquirer of all or substantially all of its assets or business to which this Agreement relates.

16. WRITTEN NOTICE

The Parties shall send all written notices pursuant to this Agreement by (i) email, or (ii) commercial overnight courier, to the applicable signatory. Notices shall be deemed received (i) if sent by email, at the time of transmission unless such deemed receipt would occur outside business hours in the place of receipt, in which case it shall be deemed received when business hours in the place of receipt resume, or (ii) if sent by commercial overnight courier, at 9.00am on the second business day after posting.

17. WAIVER AND SEVERABILITY

The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of the subject right or any further right under this Agreement.

18. FORCE MAJEURE

Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by acts of God, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

19. GOVERNING LAW

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

20. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.

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