Introduction: Your Agreement to Terms of Use.
BY CLICKING THE "I HAVE READ AND AGREED TO THE TERMS & CONDITIONS" CHECKBOX DISPLAYED
AS PART OF THE REGISTRATION, TRIAL AND ORDERING PROCESS, YOU AGREE TO THE FOLLOWING
TERMS AND CONDITIONS (THE "AGREEMENT" OR THE "TERMS") GOVERNING YOUR USE OF CLICKABLE,
INC.'S ADVERTISING MANAGEMENT SERVICES, INCLUDING ANY OFFLINE COMPONENTS AND MATERIALS
ON ANY CLICKABLE.COM OWNED OR OPERATED WEBSITE, AND CLICKABLE'S PRIVACY POLICY (COLLECTIVELY
THE "SERVICE(S)"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY
OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO
BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL
REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE
WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DO NOT AGREE" BUTTON AND
MAY NOT USE THE SERVICE.
1. Welcome:
Welcome to Clickable, Inc. advertising management Services. Clickable, Inc. is located
at: 36 East 20th Street, 3rd Floor, New York, New York 10003 and email: info@clickable.com.
References in this Agreement to "we", "us" "our," the "Company" or "Clickable" refer
to Clickable, Inc. References in this Agreement to "you," "your," or "Customer(s)"
refer to you, either an individual subscriber, customer, member or user of at least
18 years of age, or to a single company, organization or entity. This Agreement
is a legal contract between you and Clickable. You intend to be legally bound by
this Agreement. Your use of the Service is an acknowledgment that you have read,
understand, and agree to be bound by the terms of this Agreement, your Clickable
Pricing Information and/or Monthly Fees, any additional guidelines, Clickable's
Privacy Policy, and any future modifications of this Agreement (collectively the
"Terms"). If at any time you do not agree to these Terms, you must terminate your
use of the Service. You will still remain liable for any obligations incurred or
charges accrued on or before the date of termination.
2. Privacy and Disclosure:
Clickable's Privacy Policy may be viewed at: http://www.Clickable.com/privacy. Clickable
reserves the right to modify its Privacy Policy in its reasonable discretion. By
entering into this Agreement you agree with this Privacy Policy, including any modifications
or amendments thereto. Defined terms in the Privacy Policy shall have the meaning
set forth therein when used herein unless otherwise defined. In the event of a discrepancy
between this Agreement and the Privacy Policy, this Agreement shall govern. Clickable
periodically sends, both on its own and on its partners' behalf, newsletters and
marketing and promotional materials to Customers who have not opted out of receiving
these materials. Unless explicitly stated otherwise, any such offers shall be subject
to these Terms and Customer's acceptance of such offers shall be governed by this
Agreement. You agree that certain alerts, notifications, announcements and other
administrative notices are necessary for the provision of the Service and you may
not opt out of receiving them unless you terminate your subscription to the Service.
If you become a paying Customer of Clickable, the Company shall have the right to
disclose the fact that you are a paying Customer, and to describe the classification
of the Service you receive.
3. License Grant and Restrictions:
3.1 Subject to the terms and conditions of this Agreement, Clickable
hereby appoints you as an "Authorized User" of the Service, and grants you a non-transferable,
non-exclusive, non-sublicensable (except as provided in this Section 3), royalty
bearing, revocable world-wide right to: (a) access and use the Clickable Service
in (executable code only) in order to manage advertising; (b) transact or cause
other third parties to transact modifications to advertising campaigns on your behalf
provided you are authorized to access such third party accounts and provide such
permission to Clickable; (c) copy, publish, display, distribute and translate the
manuals and technical documentation (whether online or otherwise) provided by Clickable
("Documentation") solely as necessary and authorized to exercise your rights granted
hereunder. If you are taking this license on behalf of an entity or organization,
you may only designate users within the same legal entity who agree to be bound
by this Agreement as Authorized Users on such legal entity's behalf. Only one Authorized
User may access the Service at a time. All rights not expressly granted to you herein
are reserved by Clickable. You may access the Service solely for your internal purposes
and you may not resell or otherwise distribute the Service without the advance written
permission of Clickable.
3.2 You may not access the Service if you are a direct competitor
of Clickable or for purposes of benchmarking, analyzing, or comparing the Service
to others not owned by Clickable or for any other competitive purpose. Clickable
reserves the right in its sole discretion to determine the foregoing and to deny,
refuse or eliminate Service to anyone at anytime. You shall not attempt to interfere
with or disrupt the Service. You shall not allow access to or use of the Service
by anyone other than Authorized Users. You shall not: (a) license, sublicense, sell,
resell, transfer, assign, distribute or otherwise commercially exploit or make available
the Service to any third party in any way; (b) copy, modify or make derivative works
based upon the Service; (c) rent, lease, or provide access to the Service on a time-share
or service bureau basis; (d) create Internet "links" to the Service or frame or
mirror any Clickable content on any other server or Internet based device without
Clickable's advance written permission; (e) build a competitive product or service
except as allowed by Section 10; (f) build a product using similar ideas, features,
functions or graphics of the Service; or (g) transfer any of your rights hereunder
to any third party, except as may be allowed by Section 16.
3.3 You shall not use the Service to: (i) send spam or otherwise
duplicative or unsolicited messages in violation of applicable laws; (ii) send or
store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious
material, including material harmful to children or violative of third party privacy
rights; (iii) send or store material containing software viruses, worms, Trojan
horses or other harmful computer code, files, scripts, agents or programs; (iv)
interfere with or disrupt the data contained therein; or (v) attempt to gain unauthorized
access to the Service or its related systems or networks.
3.4 You shall not use the Service for any purpose that is unlawful
or is otherwise prohibited by these Terms. You shall not upload, post, reproduce
or distribute any information, software, or other material protected by copyright
or any other intellectual property right without first obtaining the permission
of the owner of such rights. You will not in any way express or imply that any opinions
contained in any communication of yours are endorsed by Clickable. You may not share
issued user names or passwords with any person or entity which is not an Authorized
User or encourage another to do so. You may not reverse engineer, decompile, disassemble
or otherwise attempt to discover the source code of the Service, except and only
to the extent that such activity is expressly permitted by applicable law notwithstanding
this limitation.
4. Your Obligations:
4.1 Internet Access and Communication. To use the Service, you
must have access to the Internet, either directly or through devices that access
Web-based content. You must provide all equipment necessary to make (and maintain)
such connection to the Internet. You are solely responsible for your equipment,
connection, and all other networking and storage devices which you use to connect
to the Service. You shall be solely responsible for all costs, fees, expenses, and
taxes of any kind related to the foregoing. Clickable shall not be responsible for
any loss or corruption of data, lost communications, or any other loss or damage
of any kind arising from any such telecommunications and Internet services. You
agree to provide Clickable with your e-mail address, to promptly notify us of any
changes to your e-mail address, and to accept e-mail or other electronic communications
from us that are necessary to communicate with you about the Service. You agree
that, except as may be otherwise specifically required by Sections 14 and 15, Clickable
may provide any and all notices, statements and other communications to you through
e-mail, posting a notice in your User Account, or posting elsewhere on the Service,
and you expressly release and shall hold Clickable harmless from any responsibility
to communicate with you other than through e-mail or electronic means of the Company's
choosing. You agree that as long as the Company provides conspicuous notice in your
User Account or elsewhere on the Service, Company shall have no liability for failure
to notify you via e-mail, including for improper address, filtration, bounce-back,
erroneous transmission or other e-mail or technical malfunction.
4.2 Third Party Software. You agree to use software produced by
third parties, including but not limited to, "browser" software that supports a
data security protocol compatible with the protocol used by Clickable. Until notified
otherwise by Clickable, you agree to use software that supports the Secure Socket
Layer protocol or other protocols accepted by Clickable and to follow the logon
procedures for that service. You acknowledge that Clickable's Service is designed
to allow you to transact modifications of advertising campaigns through other third
party systems, and that your access to the Service requires that your software will
satisfy the security requirements of each such third party system. You acknowledge
that Clickable is not responsible for notifying you of any upgrades, fixes, enhancements
or other modifications to any such third party software, or for any compromise of
data transmitted across computer networks not owned or operated in whole by Clickable.
4.3 Customer Registration and Cooperation. You agree to provide
accurate, current and complete information about you, and any entity on whose behalf
you will access the Service, as prompted by the registration form which you will
complete to gain access to the Service ("Registration Data"). You further agree
to use commercially reasonable efforts to maintain and promptly update your Registration
Data to keep it accurate, current and complete. You agree that if you provide any
information that is intentionally inaccurate, not current or incomplete in a material
way, or Clickable has reasonable grounds to believe that such information is untrue,
inaccurate or not current or complete in a material way, Clickable has the right
to terminate your access to the Service. As a condition hereunder, you shall at
all times provide Clickable with such other information as may be reasonably requested
by the company from time to time to supplement the Registration Data and to properly
and efficiently deliver the Service. Your Registration Data and all other data you
provide in connection with the registration that grants you access to the Service
shall comprise your "User Account."
4.4 Customer Responsibility. You are solely responsible for all
activity occurring under your User Account and shall abide by all applicable local,
state, national and foreign laws, treaties and regulations in connection with your
use of the Service, including those related to data privacy, international communications
and the transmission of technical or personal data. You are solely responsible for
maintaining the confidentiality of your User Account and password and for restricting
access to your computer(s), and you are responsible for all activities that occur
under your User Account by you or any Authorized User of your User Account, including
but not limited to Customer Orders. You shall promptly notify Clickable of any suspected
or alleged violation of this Agreement including any unauthorized use of any password
or User Account or any other known or suspected breach of security. You shall cooperate
with Clickable with respect to: (a) investigation by Clickable of any suspected
or alleged violation of this Agreement and (b) any action by Clickable to enforce
this Agreement. Clickable may suspend or terminate any User Account upon notice
to you in the event that Clickable reasonably determines that such User Account
has been involved in a violation of this Agreement. You remain liable for the losses
incurred by Clickable or others due to any unauthorized use of your User Account
or any User Account created by you, including but not limited to any charges associated
with any Customer Advertising Account (as defined below) or Customer Order.
4.5 Marketing. If you are a paying Customer, you grant Clickable
a non-exclusive, perpetual, royalty free fully paid up limited right to use your
name, trademarks, service marks and logos in the production of marketing materials
promoting the Company and the Service, provided that such use is in accordance with
your trademark and intellectual property use guidelines. All goodwill from the use
of such properties shall inure to your benefit.
4.6 Transmission of Data. You understand that the processing and
transmission of your transactions, communications and other instructions (collectively
"Transmissions") are fundamentally necessary to your use of the Service and consent
to Clickable's interception, storage and access to such Transmissions. You also
understand that such Transmissions will involve communication over the Internet
and over various networks which are not owned or controlled in whole by Clickable
and that changes to your Transmissions may occur in order to conform and adapt such
Transmission data to the technical requirements of connecting networks or devices.
You further understand that Transmissions may be accessed by unauthorized parties
when communicated across the Internet, network communications facilities, telephone,
or other electronic means. You agree that Clickable is not responsible for any Transmission
which is lost, altered, intercepted or stored without authorization during the movement
of any data across networks not owned or controlled and operated by Clickable. Customer
acknowledges that functionality may be available in Customer's Advertising Account
which is not available through the Service. Customer agrees that Customer remains
responsible for checking updating or otherwise transacting through Customer's Advertising
Account to ensure accurate Transmissions of data.
4.7 Third Party Sites. Clickable's Service may provide links to
third party sites or resources. Clickable has no control over such third party sites
or resources and you acknowledge and agree that Clickable is not responsible for
the availability of such external resources and does not endorse and is not liable
for any content, advertising, products or other materials available from or on such
sites or resources. Any transactions or activity between you and any third party
site or resource is solely between you and the applicable third party, and any terms,
conditions, warranties or representations associated with such activity shall be
between you and them. You recognize that certain third party providers of ancillary
services may require your agreement to additional or different license or other
terms prior to your use or access of their sites or services. Any such agreement
shall not in any way modify your Agreement here with us. If you are referred to
a third party site as an affiliate of Clickable, then you agree to permit such third
party site to share details of your transactions with them with Clickable, and you
waive any objection to any referral fee earned by Clickable.
5. Customer Advertising Accounts.
5.1 Customer Advertising Account Access. Clickable's Service is
designed to allow you to manage certain advertising campaigns through your Clickable
User Account and accounts you establish with third party advertising companies.
You agree to allow Clickable to automatically retrieve data from and transmit data
and instructions to any and all advertising accounts for which you enter the necessary
login data into the Service ("Customer Advertising Accounts"). You represent and
warrant that you have the permission, authority and rights to allow Clickable to
automatically access such Customer Advertising Accounts. You agree that Clickable
is not responsible for any liability associated with accessing and retrieving data
from Customer Advertising Accounts on your behalf or on behalf of any entity for
which you create a Customer Advertising Account. You agree to immediately disable
access in your User Account to any Customer Advertising Account for which you do
not have full legal right of access. You represent and warrant that you have reviewed
and agree that you are solely responsible for complying with any and all terms,
conditions and policies that apply to your interactions with any third party advertising
provider through any Customer Advertising Account or Clickable's Service. You shall
indemnify and hold Clickable, its officers, directors, employees, shareholders,
agents, affiliates, licensors and subcontractors harmless from any claim, costs,
losses, damages, liabilities, judgments and expenses (including reasonable fees
of attorneys and other professionals whether or not suit is brought), arising out
of or in connection with any claim, action or proceeding (any and all of which are
"Claims") arising out of or related to any act or omission by you in using the Service,
the Customer Advertising Accounts, or related to the development, operation, maintenance,
use and contents of any Customer Advertising Account campaign, including but not
limited to any infringement of any third party proprietary rights. At Clickable's
option, you shall assume control of the defense and settlement of any Claim subject
to indemnification by you (provided in such event, Clickable may at any time thereafter
elect to take over control of the defense and settlement of any such Claim, and
in any event, you shall not settle any such Claim without Clickable's prior written
consent).
5.2 Customer Beware. You acknowledge that Clickable does not own,
control or operate the Customer Advertising Accounts, and that the provision of
third party advertising is pursuant to an agreement between you and such advertising
provider. You understand and agree that data made available through the Clickable
Service is dependent upon such third party providers, and is subject to errors in
creation, Transmission, data loss, time delay and other factors beyond Clickable's
control. You understand and agree that the third party advertising provider and
your Customer Advertising Account as accessed directly through such provider, and
not through Clickable, is the only information upon which you are entitled to rely
with respect to modifications or data related to an advertising campaign. Clickable
provides any such data accessed from a third party system for your convenience only,
and does not make any representation or warranty as to its accuracy or timeliness.
Any recommendations, projections, forecasts, extrapolations, suggestions, or other
summaries provided by Clickable, whether forward or backward looking or based upon
current circumstances are nothing more than the opinion of Clickable based upon
the best information Clickable was able to access from such third party provider
and based upon the time at which such data was Transmitted to Clickable (which may
not be current at the time you view it). You agree not to rely on such opinions
in making any advertising management decisions without first verifying the accuracy
to your satisfaction directly through your Customer Advertising Account. The Service
also comprises compilations of data from various third party advertising providers.
Neither the individual Customer Advertising Account data, nor the compilation nor
comparison data is guaranteed by Clickable in any way and you agree it is your duty
to verify such data prior to making campaign management decisions or transmitting
instructions to your Customer Advertising Accounts. Clickable cannot be responsible
for the speed, accuracy or completeness of the instructions you transmit to your
Customer Advertising Accounts through the Service because Clickable does not own,
operate or control all portions or the network or software through which such transactions
are processed. You therefore agree that your Customer Advertising Account is the
only reliable source to verify that your management decisions are carried out as
accurately and completely as the third party advertising provider's system allows.
You are responsible to inform Clickable immediately as soon as you identify any
discrepancies between your Customer Advertising Account and your User Account. You
are also responsible for making sure that Customer Orders or Customer Advertising
Account management decisions are not duplicated or are properly canceled to avoid
redundant instructions.
5.3 No Guaranteed Access. You acknowledge and agree that the availability
of the Service, as well as any third party advertising provider services (including
but not limited to Google AdWords, Yahoo Search Marketing, and Microsoft adCenter)
and the terms upon which all of the foregoing are available are continually under
experimentation and development. You acknowledge and agree that this Agreement and
your use of the Service do not create any estoppel, or other rights to continued
access, and you hereby waive and agree not to assert any such claims under contract
law or any other legal theory against Clickable or the third party advertising providers
you access through the Service or Application. You acknowledge and agree that Clickable
may suspend or terminate your access to the Service or to any of the third party
advertising providers through the Service, or change any of the specifications,
protocols or methods of access, at any time, for any reason, or for no reason, and
will bear no liability for such decisions. It is solely your responsibility at all
times to backup your data and to be prepared to manage your Customer Advertising
Accounts and conduct your business without access to the Service or any particular
feature or set of features or third party access therein. Clickable does not represent
or warrant, and specifically disclaims, that the Service or any third party advertising
provider data or data in your User Account or your Customer Advertising Account
will be available without interruption or without bugs.
5.4 Account Monitoring. You agree that Clickable or third party
advertising providers with whom Clickable has a relationship may, but have no duty
to, monitor any User Account activity for the purpose of ensuring quality, improving
Clickable products and the Service, and compliance with these Terms and the Terms
Clickable or its affiliates may have with third parties. You shall not try to interfere
with such monitoring and agree that Clickable or its third party licensors may use
technical means to overcome any attempted interference.
5.5 Ownership of Aggregated Information. You acknowledge and agree
that (i) Clickable may collect information on the use, contents, performance or
management of any advertising campaign conducted through a User Account or group
of such User Accounts, whether or not owned by the same Customer, (ii) as part of
providing the Service, Clickable may aggregate reports comprised of such data, extrapolate
reports based on such data, or create programs, algorithms or recommendations based
upon its observations with respect to such aggregated data (collectively the "Clickable
Insights"), and (iii) individual data items cannot be separated out from the aggregate
data once aggregated into the Clickable Insights. You acknowledge and agree that
Clickable is and shall be the exclusive owner of such Clickable Insights and that,
except as specifically agreed to by Clickable, you shall have no right to access
such Clickable Insights, nor shall you be entitled to copies of such Clickable Insights.
In the event of a termination of your User Account, any Customer Advertising Account
or this Agreement, such Clickable Insights shall remain the exclusive property of
Clickable. By this Agreement and the Privacy Policy, you consent to Clickable's
use of such Clickable Insights in whatever manner Clickable may in its discretion
choose, provided that such Clickable Insights shall not contain personally identifiable
information (except in aggregated generic form) to you or your User Account without
your express permission. By submitting data through your User Account to the Clickable
Service, you hereby grant to Clickable a worldwide, irrevocable, non-exclusive,
transferable and sublicensable, fully paid-up, and royalty-free license to use,
display, reproduce, distribute and analyze your User Account data within the Clickable
Service in any format and through any applicable channels for the purposes of providing
the applicable features and functionality of the Clickable Service and improving
the Clickable Service's look, feel and function, and to develop additional or modified
features and functionality. This license does not grant Clickable the right to use
your User Account data for any other commercial purpose without your prior written
consent.
6. Intellectual Property.
Clickable alone (and its licensors, where applicable) shall own all right, title
and interest, including all related intellectual property rights, in and to the
Clickable Service, and the Clickable Insights and any suggestions, ideas, enhancement
requests, feedback, recommendations or other information provided by you or any
other party relating to the Service (collectively "Clickable Property"). This Agreement
is not a sale and does not convey to you any rights of ownership in or related to
the Clickable Property. In the event Clickable desires to seek any intellectual
property protection for the Clickable Property, including, but not limited to, any
patent, patent application, copyright, trademark, service mark, trade secret, invention
or other rights that require further evidence of your agreement to Clickable's intellectual
property ownership, then you shall upon request, and without further consideration,
execute such further documents as Clickable may reasonably request to evidence such
rights in Clickable. The Clickable name, the Clickable logo, and the product names
associated with the Service and all related indicia are Clickable Property unless
designated as owned by third parties, and no right or license is granted to use
them. All goodwill from your use of the Clickable Property shall inure to the benefit
of Clickable.
7. Payments for Usage.
7.1 Free Trial Period. As a valued customer of Clickable, Clickable
may provide the Service to you on a trial basis during which you will not be charged
by Clickable for use of the Service (the "Evaluation Period"). Unless otherwise
expressly agreed, your Evaluation Period shall terminate thirty (30) calendar days
from the date on which your User Account is first created and activated with Clickable.
For avoidance of doubt, an Evaluation Period may not be extended, restarted, renewed,
nor shall any Customer, whether an individual or organization or entity be entitled
to multiple Evaluation Periods. You agree not to create more than one User Account
on your or your organization's behalf for purposes of extending Evaluation Periods
or accessing the Service for more than the Evaluation Period initially offered to
you or your organization. If your organization either through you or through others
that you are aware of creates multiple User Accounts, you agree to advise Clickable
of such fact. In consideration of any such Evaluation Period, you agree to use your
reasonable good faith efforts to provide feedback to Clickable upon request regarding
your experiences in using the Service. Such requests for feedback may come in the
form of customer satisfaction surveys, requests for bug reporting, requests for
evaluation comments, request for customer references, or participation in development
of Frequently Asked Questions or support guidelines. Your refusal to participate
in such reasonably requested feedback shall be grounds in Clickable's discretion
to terminate your Evaluation Period or access to the Service. All evaluation information
provided to Clickable by Customer shall be Clickable Property. Notwithstanding the
foregoing, during the Evaluation Period you shall remain responsible for the payment
of all third party fees and all costs related to your Customer Advertising Account
as further described below.
7.2 Fees for Use. In consideration for Clickable providing the
Service, you shall pay to Clickable all applicable fees billed to you by Clickable
in accordance with the Clickable Pricing Information and/or Monthly Fees applicable
to your User Account and set forth for you at the Clickable Sign up Page. The sum
of the amounts calculated in accordance with the Pricing Information and/or Monthly
Fees applicable to your User Account are referred to herein as the "Fees" unless
a specific charge is being referenced. Unless otherwise stated, all Fees are quoted
in U.S. Dollars. The Fees shall commence at the end of your Evaluation Period; however,
you acknowledge that during your Evaluation Period you shall be responsible for
all Customer Advertising Account costs payable to third parties incurred by you.
You shall pay all Fees to your account in accordance with the Fees and billing terms
in effect at the time a Fee is due and payable. You will be required to provide
Clickable with a valid credit card or approved purchase order together with approved
credit authorization and payment terms as a condition to signing up for the Service.
If you are not requested to provide such credit card and purchase order at the commencement
of your Evaluation Period, you agree to do so immediately upon request or to have
your User Account terminated without further notice. You agree to provide Clickable
with complete and accurate billing and contact information and to keep such information
updated. You agree that this Agreement and your User Account data can be used as
your express permission to charge your credit card for the Fees as may be accrued
through your use of the Service. You agree to immediately notify Clickable if your
credit card is lost or stolen or your credit card account otherwise becomes unavailable
for any reason. At the end of each month, or as otherwise mutually agreed, Clickable
will automatically bill your credit card for the Fees accrued on your behalf for
use of the Service. If you believe you are not responsible for any of the Fees in
your credit card statement, or your account is otherwise incorrect you must contact
us in writing within fifteen (15) days of the statement date. All payment obligations
are non-cancelable and all amounts paid are nonrefundable. You agree to be responsible
and to pay to Clickable or its assignees, all reasonable costs of collection, including
reasonable fees and expenses of attorneys or other professionals. If your account
becomes thirty (30) days or more overdue, or is overdue by more than fifteen days
on more than three occasions, Clickable reserves the right to suspend the Service
provided to you and in its discretion to terminate this Agreement. Clickable preserves
all other defenses and rights and shall have no liability to you for suspending
your account. You agree and acknowledge that Clickable is not responsible to retain
your User Account data and that Clickable may delete your User Account data from
any server or archival records maintained by Clickable, except as needed to later
evidence the accuracy of the Fees. Clickable's Fees are exclusive of taxes, duties,
levies, tariffs, and other governmental charges (including, without limitation,
VAT) (collectively, "Taxes"). You shall be responsible for payment of all Taxes
and any related interest and/or penalties resulting from any payments made hereunder,
other than any taxes based on Clickable's net income. Clickable reserves the right
to modify its Fees and to introduce new charges at any time, upon at least 30 days
prior notice to you, which notice may be provided by e-mail or via your User Account
or other notice of modification to the Pricing Information and/or Monthly Fees applicable
to you. All Fees and pricing terms are confidential, and you agree not to disclose
them to any third party. You are responsible for making payments to third party
advertisers to satisfy all charges incurred under Customer Advertising Accounts
as a result of your use of the Clickable Service pursuant to any applicable terms
and conditions that may exist between you and the third party advertising providers.
You acknowledge that Clickable is in no way responsible for any charges incurred
under Customer Advertising Accounts and you agree to indemnify and hold harmless
Clickable from all such charges, and not to make any statement or claim to the contrary.
8. Term and Termination.
8.1 Term. This Agreement shall commence on the first day of the
Evaluation Period (the "Effective Date") and shall continue for thirty days thereafter
(the "Initial Term") and shall automatically renew for subsequent one month periods
at the then current specified Fees unless either party provides 30 days advance
written notice of termination to the other. The Initial Term taken together with
all subsequent renewals shall be the "Term."
8.2 Termination. Clickable may terminate this Agreement immediately
without notice for any reason or for no reason within the Evaluation Period or the
Initial Term. Either party may terminate this Agreement upon thirty days written
notice to the other for any reason. Clickable may in its sole discretion reduce
any offering or feature provided as part of the Service at any time and for any
reason or upon notice from a third party or licensor. Clickable may terminate this
Agreement in its discretion if it reasonably believes you have violated any provision
of this Agreement or our agreement with any third party advertising provider. If
your use of the Service causes Clickable to incur excessive API charges, Clickable
may, at its option terminate this Agreement or deny your continued use of the Service.
Clickable will provide reasonable notice prior to taking the above actions. Any
breach of your payment obligations or unauthorized use of Clickable's Service will
be deemed a material breach of this Agreement. Either party may terminate this Agreement
upon written notice to the other party if the other party materially breaches this
Agreement and fails to cure such breach within ten days following written notice
specifying the breach.
8.3 Rights after Suspension, Expiration or Termination. In the
event of suspension, expiration or termination, your User Account and your access
and right to use the Service shall immediately cease and the license granted to
you hereunder shall terminate and be of no future use to you. All Fees shall become
immediately due and payable. You shall immediately return to Clickable and make
no further use of any Confidential Information, Documentation or other items belonging
to Clickable. Clickable may destroy or otherwise dispose of any Customer data not
yet aggregated into Clickable Insights in its possession. Upon expiration or termination,
Clickable shall cease to use any Customer brands, logos or trademarks as contemplated
by Section 4.5, provided, however, that Clickable shall have a commercially reasonable
time of not less than thirty days to provide for the removal of such Customer marks,
and provided further that Clickable shall be entitled to complete distribution of
any and all printed materials making use of Customer marks as were prepared during
the Term, and Clickable shall have no obligation to remove any marketing literature
bearing Customer's marks from circulation. Sections 2, 3.2, 4.5, 4.6, 5, 6, 7.2,
and 8 - 17 shall survive any termination or expiration of this Agreement.
9. Representation and Warranties.
Each party represents and warrants that it has the legal power and authority to
enter into this Agreement. Clickable represents and warrants that it will provide
the Service in a manner consistent with general industry standards reasonably applicable
to the provision thereof and that the Service will perform substantially in accordance
with the Documentation under normal use and circumstances. You represent and warrant
that you have not falsely identified yourself nor provided any false information
to gain access to the Service and that your billing information is correct. You
further make all representations and warranties as are contained throughout this
Agreement in each case as if recited here.
10. Confidentiality, Non-Competition and Non-Solicitation.
Clickable may from time to time during the Term disclose to you certain Confidential
Information. "Confidential Information" means trade secrets, know-how, inventions,
techniques, processes, source code, pricing and discount lists and schedules, customer
lists, contract terms, customer leads, financial information, sales and marketing
plans and other such proprietary information. You will not use any Confidential
Information of Clickable for any purpose not expressly permitted by this Agreement,
and will disclose the Confidential Information of Clickable only to your employees
or contractors who are bound to you by written confidentiality obligations and have
a need to know such Confidential Information for purposes of this Agreement. You
will protect Clickable's Confidential Information from unauthorized use, access,
or disclosure in the same manner as you protect your own confidential or proprietary
information of a similar nature and with no less than reasonable care. Your obligations
under this Section 10 with respect to any Confidential Information of Clickable
will terminate if and when you can document that such information: (a) was already
lawfully known to the you at the time of disclosure by Clickable without restriction;
(b) was disclosed to the you by a third party who had the right to make such disclosure
without any confidentiality restrictions; (c) is, or through no fault of yours becomes,
generally available to the public; or (d) is independently developed by you without
access to, or use of, Clickable's Confidential Information. You may disclose Confidential
Information to the extent disclosure is required by judicial order from a court
of competent jurisdiction; provided, however, that prior to such a disclosure, you
will notify Clickable of such required disclosure and will cooperate with Clickable,
at Clickable's request and expense, in any lawful action to contest or limit the
scope of such required disclosure. During the Term and for a period of one year
thereafter, without Clickable's prior written permission, you and any entity on
whose behalf you access the Service shall not directly or indirectly market, sell
or develop any technology or services that are similar to or competitive with or
incorporate features, data or Confidential Information of Clickable, the Service,
nor shall you solicit or attempt to solicit or otherwise interfere in the relationship
between (i) any prospective customer or partner of Clickable, (ii) any employee
or contractor of Clickable, or (iii) any person reasonably believed to be a licensee
of Clickable. If you are in a jurisdiction in which such a provision is not enforceable,
such provision shall not apply and this Agreement shall be read in its entirety
without such provision.
11. Disclaimer of Warranties.
YOU ACKNOWLEDGE THAT CLICKABLE DOES NOT MANAGE OR CONTROL ANY ADVERTISER THAT YOU
MAY INTERACT WITH THROUGH THE SERVICE, AND ACCEPTS NO RESPONSIBILITY OR LIABILITY
FOR ANY ACT OR OMISSION BY AN ADVERTISER, INCLUDING BUT NOT LIMITED TO THE REFUSAL
OF AN ADVERTISER TO ACCEPT YOUR CHOSEN SEARCH TERMS, KEYWORDS, ADVERTISEMENTS, THE
REFUSAL TO ALLOW CLICKABLE TO ACCESS ANY CUSTOMER ADVERTISING ACCOUNT, OR ANY OTHER
FAILURE OR REFUSAL OF AN ADVERTISING SERVICE TO FACILITATE OR MANAGE OR MODIFY YOUR
ADVERTISING CAMPAIGN IN ANY WAY. YOU HEREBY WAIVE ANY AND ALL LEGAL OR EQUITABLE
RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST CLICKABLE WITH RESPECT TO ACTS AND
OMISSIONS BY ADVERTISERS AND WITH RESPECT TO USER ACCOUNT DATA TRANSMITTED THROUGH
THE CLICKABLE SERVICE.
THE CLICKABLE SERVICE AND ANY THIRD-PARTY OR USER-PROVIDED DATA, SOFTWARE, SERVICES,
OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH CLICKABLE ARE PROVIDED
"AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CLICKABLE, ITS SUPPLIERS,
LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
CLICKABLE, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS
CONTAINED IN THE CLICKABLE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE
CLICKABLE SERVICE WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR
THAT THE CLICKABLE SERVICE, OR THE NETWORK DEVICES AND SERVERS THAT MAKE THEM AVAILABLE,
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CLICKABLE, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE CLICKABLE SERVICE IN TERMS OF
EFFECTIVENESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLICKABLE WILL NOT BE RESPONSIBLE
OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO
STORE OR MAINTAIN ANY USER PROVIDED DATA. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS
ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE
LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS
MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12. Limitation of Liabilities.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WILL CLICKABLE
OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR THIRD-PARTY PARTNERS,
LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR
LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR
LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE
THE CLICKABLE SERVICE, OR ANY OTHER INTERACTIONS WITH CLICKABLE, EVEN IF CLICKABLE
OR A CLICKABLE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY
OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU. IN SUCH CASES, CLICKABLE'S LIABILITY WILL BE LIMITED TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL THE TOTAL LIABILITY OF CLICKABLE OR ITS AFFILIATES, CONTRACTORS,
EMPLOYEES, ATTORNEYS, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TO
YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO
THESE TERMS OR YOUR USE OF THE CLICKABLE SERVICE, (WHETHER IN CONTRACT, TORT, INCLUDING
NEGLIGENCE AND WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR
ACCESSING THE CLICKABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING
THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT CLICKABLE HAS OFFERED ITS PRODUCTS AND SERVICES,
SET ITS FEES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY
AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY
AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR
ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY
MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS
OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL
BASIS OF THE BARGAIN BETWEEN YOU AND CLICKABLE.
13. Relationship - Independent Contractors.
You and Clickable are independent contractors and nothing in this Agreement will
be deemed to create any agency, employee-employer relationship, partnership, or
joint venture between the parties. Except as otherwise provided in this Agreement,
neither party has or may represent that it has the right, power or authority to
bind, contract or commit the other party or to create any obligation on behalf of
the other party. For the avoidance of doubt, if you use the Service to instruct
third party advertisers to make changes to your Customer Advertising Account, then
you agree to be bound by such instructions regardless of how transmitted.
14. Notice.
Clickable may give notice to you by means of a general notice on the Service, or
by e-mail to your e-mail address on record in your User Account, via posting in
your User Account, or by written communication sent by first class mail or prepaid
post to your address on record in Clickable's account information. Such notice shall
be deemed effective within 48 hours of transmission by mail, or within 12 hours
of transmission by e-mail or by notice on the Service. You may give notice to Clickable
by sending an e-mail to Clickable at info@Clickable.com or by sending a written
notice by first class mail or prepaid post to: Attention: Customer Service, Clickable,
Inc. 36 East 20th Street, 3rd Floor , New York, New York 10003. Such notice shall
be deemed effective when received by Clickable.
15. Modification of Terms.
Clickable reserves the right to modify the terms and conditions of this Agreement,
including but not limited to the Pricing Information and/or Monthly Fees, or its
policies relating to the Service at any time, effective upon Clickable's notification
to you of such modification via e-mail and posting of an updated version of this
Agreement on the Service, including but not limited to in your User Account, and
your signifying your assent to the updated Agreement by clicking the "I HAVE READ
AND AGREE TO THE TERMS AND CONDITIONS" checkbox displayed following the updated
Agreement. You are responsible for regularly reviewing this Agreement. Continued
use of the Service after any such changes shall constitute your consent to such
changes.
16. Assignment or Change in Control.
This Agreement may not be assigned by you without the express written consent of
Clickable, which consent may be withheld for any reason, but may be assigned by
you subject to the restrictions contained herein to (a) a parent or subsidiary,
(b) an acquirer of substantially all of the assets of your entity, or (c) a successor
by merger. Your liability for Fees shall survive such transfer until paid in full.
Any attempted transfer in violation of these provisions shall be void. Any transfer
or attempted transfer by you that would result in a competitor of Clickable having
more than a 50% interest in you or your User Account shall be a material breach
and grounds for termination of this Agreement. This Agreement is freely assignable
by Clickable.
17. Miscellaneous.
17.1 No Waiver and Severability. No waiver by any party to a breach
of this Agreement shall constitute a waiver of any provision of this Agreement or
of any subsequent or other breach or default under this Agreement. In the event
that any portion of this Agreement is held to be invalid or unenforceable, such
provisions shall be limited or eliminated to the minimum extent necessary and the
remaining provisions of this Agreement shall remain in full force and effect.
17.2 Governing Law. This Agreement and all matters arising out
of or relating to this Agreement shall be governed by the laws of the State of New
York without regard to its conflict or choice of law provisions. Any legal action
or proceeding relating to this Agreement or the provision of the Service shall be
brought in the state or federal courts located in New York, New York. You hereby
submit to the jurisdiction of and agree that venue is proper in those courts in
any such legal action or proceeding.
17.3 Force Majeure. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its obligations hereunder (except
for the payment of money) on account of events beyond the reasonable control of
such party, which may include without limitation denial-of-service attacks, strikes,
shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war,
terrorism, governmental action, labor conditions, earthquakes and material shortages,
and upon the occurrence of any of the foregoing, the non-performing party will be
excused from further performance of its obligations caused by such event for so
long as the event continues and such party continues to use commercially reasonable
efforts to resume performance.
17.4 Entire Agreement. This Agreement together with the Privacy
Policy, the Pricing Information and/or Monthly Fees, and any and all Exhibits to
any of the foregoing constitutes the entire agreement between the parties concerning
its subject matter and supersedes all prior or contemporaneous agreements or understandings,
written or oral, concerning the subject matter of this Agreement.
17.5 Equitable Relief. You acknowledge that any breach by you of
this Agreement may cause irreparable damage or injury to Clickable, for which the
award of damages would not be adequate compensation. You agree that Clickable may
bring an action to enjoin you from any and all acts in violation of those provisions,
which remedy shall be cumulative and not exclusive, and Clickable may seek the entry
of an injunction enjoining any breach or threatened breach of those provisions,
in addition to any other relief to which Clickable may be entitled at law or in
equity.