This AdBull Service Agreement (the "Agreement') is a legal agreement between you ("Company") and Lexos Media, Inc. (dba “AdBull"). YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU CAN IMPLEMENT AND BEGIN USING THE ADBULL SERVICE AND/OR PARTICIPATING IN THE ADBULL REFERRAL PROGRAM. BY SUBMITTING YOUR APPLICATION AND/OR USING THE ADBULL SERVICE OR PARTICIPATING IN THE ADBULL REFERRAL PROGRAM, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU AGREE ON BEHALF OF ANOTHER PARTY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
A. Definitions.
All capitalized terms not defined in these Terms and Conditions have the meanings given at the time the term is introduced.
1. ”Ad” or “Advertisement” means text-based, graphical, interactive, rich media online advertisements, including, without limitation, Cursor Companion Ads, banner advertisements, buttons, towers, skyscrapers, pop-ups, and pop-unders.
2. ”AdBull Service” means AdBull’s patented proprietary system and related tools that enable the Company to display Ads on the Company Web Site, and track data on impressions, revenue, and other related statistics.
3. ”AdBull Technical Support” means all technical support services related to the AdBull Service provided by AdBull in connection with this Agreement whether such services are provided via telephone, live Internet chat, user forums, documentation, email or by any other means.
4. ”AdBull Web Site” means AdBull’s primary URL at www.AdBull.com or such other URL as AdBull may designate from time to time during the Term, including under Section 3.3, which will allow Company to manage its use of the AdBull Service, including reports of activity and impressions via the AdBull Service.
5. ”Ad Inventory” means those certain Ad impressions on a Web site that Company makes available through the AdBull Service for Buyers to purchase and distribute Ads.
6. ”Ad Network” means a representative of one or more Web sites for the sale of Ad Inventory to Buyers or the distribution of Advertisements to Web sites.
7. ”Advertiser” means the entity delivering its commercial message to an Internet user.
8. ”Agreement” means this AdBull Service Agreement.
9. ”Buyer” means an Advertiser, advertising agency, Ad Network, or other party seeking to purchase Ad Inventory from Company.
10. ”Company” means the individual or entity specified in the opening paragraph of this Agreement, who is entering into this Agreement with AdBull.
11. ”Company Web Site(s)” means those Web sites owned (directly or derivatively), controlled, and/or operated by Company that are selected by Company for the display of Advertisements using the AdBull Service.
12. ”Confidential Information” has the meaning given in the section marked ‘Confidentiality’.
13. “Cursor Ad Unit” means a Cursor Companion Ad provided that such ad is delivered by AdBull to Company.
14. “Cursor Companion Ad” means a commercial message attached to the cursor thereby expanding the cursor field, in some cases including a call to action.
15. ”Effective Date” means the date specified in the opening paragraph of this Agreement, upon which date Company and AdBull agree to be bound by the terms and conditions of this Agreement.
16. ”Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents (specifically but not limited to the following: 5,995,102 - 6,065,057 - 6,118,449 - 7,111,254 & 7,975,241), licenses, trademarks (and the goodwill represented thereby), and similar rights of any type under the Laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
17. ”Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality.
18. ”Scheduled Downtime” means a period of time during which AdBull will not provide the AdBull Service in accordance with previously scheduled repairs, upgrades, maintenance or other operations deemed necessary by AdBull in its reasonable discretion..
19. ”Term” has the meaning given in Section (Term).
20. ”Unscheduled Downtime” means a period of time during which AdBull is unable to provide the AdBull Service or during which it is not commercially reasonable for AdBull to provide the AdBull Service as a result of unforeseen circumstances including but not limited to (a) equipment or software malfunctions; (b) causes beyond the control of AdBull or which are not reasonably foreseeable by AdBull, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures; or (c) any event which would constitute a force majeure event under Section (Force Majeure).
B. Use of AdBull Service.
1. AdBull Service. Subject to the terms and conditions of this Agreement, AdBull will make the AdBull Service available to Company.
2. AdBull Service License.
1. Ownership. AdBull owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to (a) the AdBull Service; (b) the AdBull Web Site; and (c) all Feedback submitted by Company.
2. License Grant. AdBull grants to Company the non-exclusive, non-transferable, non-sublicensable, world-wide, and, except for as provided in Section 5.1 herein, right and license during the Term to access and use the AdBull Service solely in accordance with this Agreement. By accepting this license, Company is acknowledging AdBull's Intellectual Property.
3. Restrictions. Except as set forth in this Agreement, Company agrees not to (a) reproduce or distribute the AdBull Service, or any portion thereof; (b) use or authorize use of the AdBull Service for any purpose not specified in this Agreement; (c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the AdBull Service or access thereto; (d) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the AdBull Service or any portion thereof, or attempt to do any of the foregoing; (e) display cursor ad units or similar implementations where an advertisement is connected to a cursor via anyone other than AdBull.
4. No Implied Licenses. Except to the extent set forth herein, (a) AdBull does not grant to Company any other license, express or implied, to AdBull’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by Law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other party. AdBull expressly reserves all Intellectual Property Rights not expressly granted hereunder.
3. AdBull’s Obligations.
1. System Availability. During the Term, AdBull will use commercially reasonable efforts to make the AdBull Service available to Company except in the event of Scheduled Downtime or Unscheduled Downtime. AdBull shall use commercially reasonable efforts to provide 48 hour advance notice to Company in the event of any Scheduled Downtime. AdBull shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the AdBull Service in connection with Scheduled Downtime or Unscheduled Downtime. AdBull reserves the right to (a) suspend provision of the AdBull Service, (b) throttle down or reduce the number of impressions served to Company by the AdBull Service or (c) immediately terminate this Agreement without notice in the event of a commercially unreasonable increase in the volume of impressions requested by Company.
2. Provision of AdBull Service. AdBull shall make available, operate and support the AdBull Service, including without limitation all applicable servers, hardware, security systems, software, documentation, products and services contained in or made available to Company in connection with receiving Ads via the AdBull Service. AdBull makes no guarantee that any Cursor Ad Units will appear on any page of the Company Web Sites, and consequently there is no guarantee that the Agreement will generate any revenue for Company. AdBull may replace or remove Cursor Ad Units at any time, or modify or improve the AdBull Service, including without limitation, the "look and feel" of the AdBull Service at its sole discretion. Company grants permission to AdBull to index and cache Company Web Sites and any portion thereof, by manual or automated means, for the purpose of directing Cursor Ad Units to Company Web Sites.
3. Alternate AdBull Websites. From time to time, AdBull may establish separate instances of the AdBull Service at separate AdBull Web Sites focused around specific content or markets. Without limiting any of AdBull’s rights under this Agreement, AdBull reserves the right at any time, upon notice to Company in accordance with Section 13.9, to move Company’s access to the AdBull Service to such other AdBull Web Sites.
4. AdBull Technical Support. During the Term, AdBull will use commercially reasonable efforts to provide the AdBull Technical Support. AdBull will use commercially reasonable efforts to respond as soon as possible to all incidents relating to the uptime of the AdBull Service. Company may submit questions through the AdBull Web Site and such questions may be answered by AdBull staff or members of the AdBull Service user forums. Notwithstanding anything to the contrary in this Section 3.4, (a) AdBull may elect to prioritize its response to a given support-related incident depending on the severity of the incident and all pending incidents submitted by other customers; and (b) AdBull shall determine in its reasonable discretion when a support-related incident has been resolved and whether or not a given incident qualifies for support under this Agreement.
5. Training. AdBull will provide access to Web-based training materials on the AdBull Web Site to all customers. If Company requires additional training, AdBull will provide such training to Company, at a mutually-agreed time, at AdBull’s standard, then-current rates for such training.
6. Timing and Location of Support and Training Services. AdBull shall provide the AdBull Technical Support solely during Normal Business Hours, excluding Scheduled Downtime and Unscheduled Downtime. For purposes of this Agreement, “Normal Business Hours” means Monday through Friday 9 a.m. to 5 p.m. (Eastern Time), excluding federal court holidays. All AdBull Technical Support, training, consulting and other services shall be provided by AdBull at a facility of its choosing. In the event AdBull agrees to provide the services in the foregoing sentence on an on-site basis, Company agrees to reimburse AdBull for its actual travel and lodging expenses in addition to at AdBull’s standard, then-current rates for such services.
4. Company’s Obligations
1. 1. Company Web Sites. Company may implement the AdBull Service only on such Company Web Sites submitted to and approved by AdBull, as listed in Company’s My Account section on the AdBull Web Site. Any change or amendment to Company’s Web Sites must be done in the My Account section. Company shall not implement the AdBull Service for any Company web sites not approved by AdBull and listed in Company’s My Account section on the AdBull Web Site. AdBull reserves the right to deny or revoke participation of any Company Web Site at any time in its sole discretion, whether or not previously approved by AdBull. Company will promptly inform AdBull of any material changes in the themes or content of Company Web Sites. Company shall be solely responsible for the integration of any scripts and/or code, as deemed appropriate by Company, required for the integration of the AdBull Service on the Company Web Sites, and the creation, development, operation, maintenance and hosting of Company Web Sites. Company alone shall be responsible for all Internet access fees necessary to access the AdBull Service and all Internet access fees associated with the Company Web Site.
2. Prohibited Content. Company Web Sites shall comply with all applicable Laws during the Term. Company shall not use the AdBull Service on websites that: (a) contain any content deemed as unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, as determined by AdBull in AdBull’s sole and absolute discretion; (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 Advertisement transmitted through the AdBull Service; (e) transmit any content that Company does not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) transmit any content that infringes or misappropriates any Intellectual Property Right or other proprietary rights of any person; (g) transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the AdBull Service or networks connected to the AdBull Service; or (i) violate any applicable Law. AdBull reserves the right to withhold, or remove Advertisements from the AdBull Service without notice for any breach of this Agreement.
3. My Account Section. Company is entirely responsible for the security of, and for all actions taken using, the Company’s My Account section on the AdBull Web Site, including the security of Company’s login ID and password.
4. Exclusivity. During the Term of this Agreement, and for six months following the end of the Term, the Company will not enter into any other arrangement, or agreement, with any third party to obtain services for the Company Web Sites that are substantially similar to Cursor Ad Units.
1. Revenue Share. AdBull will pay Company a Revenue Share amount as determined by AdBull, in its sole discretion, relating to Company's usage of the AdBull Service on Company Web Sites. “Revenue Share” means the amount due to Company for its usage of the AdBull Service as determined by AdBull, less (a) any Taxes (as defined below) that AdBull is required to pay or collect in relation to the AdBull Service, any payments to third parties related to the AdBull Service, and any creative services costs related to the AdBull Service; and (b) any amounts that are generated as a result of a robot, spider, software, or other mechanical, artificial or fraudulent means, or actions by a person who is paid or deceptively motivated to take such action, each as reasonably determined by AdBull. Revenue Share is based on a number of factors including, but not limited to, the quantity and quality of impressions generated via the AdBull Service and the validity of any subsequent click-throughs or conversions.
2. Payment Terms. Not more than fifteen (15) days after the end of each calendar month, AdBull will e-mail to Company or post in the My Account section at the AdBull Web Site a finalized Revenue Share statement for amounts due to Company for the prior calendar month. AdBull will pay Company in accordance with the revenue statement not later than forty-five (45) days from the end of the month in which such Revenue Share was generated. If payments due to Company for any month are less than one hundred dollars ($100), AdBull may, in its discretion, credit amounts due to Company's account and pay such amounts the next month in which cumulative amounts due meet or exceed that threshold. All payments will be made in U.S. Dollars.
3. Taxes. All payments due to Company are calculated and made exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, "Taxes"). Company will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on AdBull’s net income.
4. Reporting. All amounts payable to Company will be calculated based on AdBull's reporting system. Company acknowledges and agrees that amounts due under this Agreement are based solely on AdBull's final reported numbers and on no other source
5. Withholding. AdBull reserves the absolute right to withhold payment from Company if Company has violated any of the terms and conditions set forth herein. AdBull will determine, in its sole and absolute discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement..
6. Referrals.
1. General. From time to time, Company may desire to refer potential publishers to AdBull (a “Referred Publisher”) via the AdBull Referral Program. The “AdBull Referral Program” shall mean AdBull’s proprietary referral system available at the AdBull Web Site, whereby Company is able to generate unique ad tags and advertisements which a) promote the AdBull Service; and b) track Company as being the referral source for any Referred Publishers. As consideration for a Referred Publisher, Company will receive a fee (“Referral Fee”), calculated in accordance with Section 6.3 hereof.
2. Right to Refuse. All Referred Publishers must be made in good faith and AdBull reserves the right, in all cases, to refuse such Referred Publisher for any reason, including without limitation conflicts and/or the presence of a pre-existing relationship with the Referred Publisher subject at all times to the confidentiality provisions set forth herein. In no event will AdBull, upon refusing a Referred Publisher pursuant to Section 6.1 above, contact the Referred Publisher to solicit such Referred Publisher for participation in the AdBull Service for a period of twelve (12) months. Notwithstanding the foregoing, in the event AdBull has a pre-existing relationship with the Referred Publisher, or a different party has previously claimed the Referred Publisher as a referral, or in the event the Referred Publisher contacts AdBull on its own accord after AdBull has refused the Referred Publisher, nothing contained herein will be deemed to prohibit AdBull from admitting the Referred Publisher into the AdBull Service, without any obligation to pay Company the Referral Fee for such Referred Publisher.
3. Referral Fees. All With respect to each Referred Publisher accepted into the AdBull Service, AdBull will pay Company a Referral Fee in accordance with the following schedule:
• In the event a Referred Publisher is active for forty-five (45) days and earned between $5.00 - $50.00, Company will receive $5 for such Referred Publisher;
• In the event a Referred Publisher is active for forty-five (45) days and earned between $50.01 - $250.00, Company will receive $25 for such Referred Publisher;
• In the event a Referred Publisher is active for forty-five (45) days and earned greater than $250.00, Company will receive $50 for such Referred Publisher; and
• In the event Company has referred fifty (50) or more Referred Publishers, Company will receive an additional $5 per active Referred Publisher for every one hundred eighty (180) days that the Referred Publisher remains active.
Payments of Referral Fees will be made in arrears no later than forty-five (45) days after the end of each calendar month in which such Referral Fees are earned, and only if the Referral Fees accrued are at least $100. If accrued Referral Fees are less than $100, then the Referral Fees shall accrue and be paid once the sum of the accrued Referral Fees exceeds $100. For the avoidance of doubt, any Referral Fees earned by Company hereunder are separate from any Revenue Share earned by Company hereunder and the respective amounts shall not be combined in order to determine if the $100 payment threshold is achieved. All payments will be made in U.S. Dollars.
1. By AdBull. AdBull may use and disclose data derived from Company’s use of the AdBull Service (the “Company Data”), (a) in accordance with the AdBull Privacy Policy; (b) if required by court order, Law or governmental agency; and (c) to operate, manage, maintain and improve the AdBull Service (including its communications with its current and prospective partners and advertisers). Company owns all right, title, and interest in and to the Company Data. Company may use the Company Data in accordance with Company’s Privacy Policy.
8. Term and Termination.
1. Term. This Agreement shall commence on the date you accept this Agreement, shall continue for one year and shall be automatically renewed for each subsequent one-year period thereafter, unless otherwise terminated in accordance with this Agreement (“Term”).
1. Termination or Suspension by AdBull. AdBull may at any time, in its sole discretion, with or without notice to Company and without liability whatsoever, (i) terminate this Agreement for any or no reason; or (ii) suspend, modify, or discontinue, temporarily or permanently, all or any part of the AdBull Service. Company shall not have any remedy against AdBull based on or arising out of AdBull’s termination of this Agreement, and termination of this Agreement by AdBull shall be without prejudice to the rights of AdBull accrued at the date of such termination.
2. Termination By Company. Company may at any time terminate this Agreement for any or no reason by (i) removing the AdBull JavaScript or similar programming from Company Website(s); and (ii) providing to AdBull written notice of termination to AdBull. This Agreement will be deemed terminated as soon as reasonably practicable after AdBull’s receipt of your notice of termination.
3. Survival. Sections (Definitions), (Restrictions), (No Implied Licenses), (Exclusivity), (Fees), (Term and Termination), (Representations, Warranties and Covenants), (Disclaimer), (Limitation on Liability), (Indemnification), and (Miscellaneous) shall survive termination or expiration of this Agreement for any reason. Upon termination or expiration of this Agreement for any reason, (a) Company shall destroy, delete or return to AdBull all Confidential Information; (b) all licenses granted by AdBull to Company under this Agreement shall immediately terminate without notice; and (c) Company shall immediately cease all use of the AdBull Service.
9. Representations, Warranties and Covenants.
1. Mutual Representations, Warranties and Covenants. Each party hereto represents, warrants and covenants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions.
2. Company’s Representations, Warranties and Covenants. Company represents, warrants and covenants that (a) Company’s use of the AdBull Service will comply with all applicable Laws (including that Company’s collection, use and storage of data in connection with or resulting from its use of the AdBull Service shall comply with all applicable privacy Laws); and (b) it will not use the AdBull Service in a manner that reasonably could be expected to damage or cause injury to AdBull Service or otherwise reflect unfavorably on the reputation of AdBull.
3. AdBull’s Representations, Warranties and Covenants. AdBull represents and warrants that: (a) the AdBull Service does not and will not knowingly infringe the Intellectual Property Rights or any other rights of any third party; (b) there is no pending or threatened claim alleging or suggesting that the AdBull Service infringes the Intellectual Property Rights or any other rights of any third party; (c) it will comply with all applicable Laws in carrying out the obligations set forth in this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY ADBULL IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADBULL MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED. THE ADBULL SERVICE IS MADE AVAILABLE TO COMPANY "AS IS" AND “AS AVAILABLE” AND “WITH ALL FAULTS” AND ADBULL DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE ADBULL SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE ADBULL SERVICE WILL MEET COMPANY'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE ADBULL SERVICE OR THE SERVER(S) THAT MAKE THE ADBULL SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADBULL EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
1. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION (EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS), TO THE MAXIMUM EXTENT A LIMITATION OF DAMAGES OR LIABILITY IS PERMITTED BY APPLICABLE LAW, ADBULL WILL NOT BE LIABLE TO COMPANY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADBULL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. LIABILITY CAP. SUBJECT TO SECTION (EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS), IN NO EVENT SHALL ADBULL’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH ADBULL’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED ONE HUNDRED DOLLARS ($100.00).
3. Exceptions from Exclusions and Limitations. Nothing in this Agreement shall exclude or limit either party’s liability for: (a) breaches of Section (Confidentiality); (b) damages, fees, or liabilities owed under a party’s indemnification obligations under Section (Indemnification) or any amounts paid or payable to third parties in connection with such obligations; or (c) such party’s gross negligence or willful misconduct.
4. Allocation of Risk. The parties agree that (a) the mutual agreements made in this Section (Limitation of Liability) reflect a reasonable allocation of risk, and (b) that each party would not enter into the Agreement without these exclusions and limitations on liability and the exceptions set forth above.
12. Indemnification.
1. Company shall indemnify, defend and hold harmless AdBull and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “AdBull Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the AdBull Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) alleging any fact, which, if true, would constitute a breach by Company of this Agreement; (b) Company’s use of the AdBull Service other than as permitted herein; or (c) alleging that any content on the Company Web Site violates any applicable Law, including without limitation by infringing or misappropriating any Intellectual Property Right or any other proprietary right; provided, however, that in any such case AdBull will (i) provide Company with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Company of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Company to assume and control the defense of such action upon Company’s written notice to AdBull of Company’s intention to indemnify; and (iii) upon Company’s written request, and at no expense to AdBull or its affiliates, provide to Company all available information and assistance reasonably necessary for Company to defend such claim. Company will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any AdBull Party, without AdBull’s prior written consent, which will not unreasonably be withheld or delayed.
2. AdBull shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Company Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) a breach by AdBull of any obligation, provision, representation, or warranty set forth in this Agreement; (b) any claim arising out of Company’s permitted use of the AdBull Service, including without limitation any claim that the AdBull Service infringes the Intellectual Property Rights of any third party; (c) the negligence or willful misconduct of AdBull or its agents, employees, or affiliates; or (d) any claim that AdBull has violated any applicable Laws in performing its obligations under this Agreement; provided, however, that in any such case Company will (i) provide AdBull with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve AdBull of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit AdBull to assume and control the defense of such action upon AdBull’s written notice to Company of AdBull’s intention to indemnify; and (iii) upon AdBull’s written request, and at no expense to Company or its affiliates, provide to AdBull all available information and assistance reasonably necessary for AdBull to defend such claim. AdBull will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Company Party, without Company’s prior written consent, which will not unreasonably be withheld or delayed.
1. Confidentiality. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may not disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). In whole or in part, the terms and conditions of this Agreement also constitute Confidential Information. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.
1. Publicity. Any public announcement relating to the Agreement must fairly and accurately represent the parties’ business relationship and must not conflict with this Agreement.
2. Independent Contractors. It is the intention of AdBull and Company that AdBull and Company are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between AdBull and Company.
3. Entire Agreement. This Agreement, together with all exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the parties, oral or written.
4. Changes. AdBull may make changes to this Agreement from time to time. When these changes are made, AdBull will notify you of such changes via the My Account section of the AdBull Web Site and make the new version of the Agreement available at the AdBull Web Site. Company understands and agrees that if Company uses or enjoys the benefits of the Service at any time seven (7) or more days after the date on which AdBull has made the new terms available to Company, such use or enjoyment of the benefits shall be deemed acceptance of the updated Agreement. If Company does not agree to such new terms, it must cease use of the AdBull Service and terminate this Agreement by written notice to AdBull.
5. Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
6. Governing Law. This Agreement will be governed by and interpreted in accordance with the Laws of the State of
7. Successors and Assigns. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement without consent in connection with the sale of all or substantially all its assets. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section, including, without limitation, by operation of law, is void. Notwithstanding the first sentence of this Section, AdBull may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that AdBull will remain liable and responsible for any performance or obligation so delegated.
8. Force Majeure. No party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such party.
9. Notices. All notices, requests, consents, and other communications relating to the parties’ performance under this Agreement will be in writing, and will be delivered by hand or sent by reputable overnight courier service or electronic facsimile transmission (with a copy sent by first class mail, postage prepaid) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, if to AdBull at 21 Astor Place, #10-D, New York, NY 10003 Attention: Legal Department, and if to Company at the address listed in the first paragraph of this Agreement, or such other addresses as each party specifies to the other party in writing by notice given in accordance with this Section. Any invoices, notices and other communications that may expressly be given electronically under this Agreement may be given by AdBull to Company via email to the email address supplied by Company to AdBull in connection with this Agreement (or such other email address that Company may designate using AdBull’s then-permitted method for the provision of such updated email addresses). Notices provided in accordance with this Section will be deemed delivered: (a) immediately if personally delivered, sent by electronic facsimile transmission or sent by AdBull via email; or (b) if sent by overnight courier service, 24 hours after deposit with such courier service; or (c) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. The failure by Company to update its contact information or email address pursuant to this Section will not diminish the effectiveness of any written or electronic notice sent by AdBull to Company under this Agreement.
10. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
11. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together will constitute one instrument. The Parties agree that copies of this Agreement (including copies of any signatures) that are reproduced or transmitted via portable document format (PDF) or electronically receipted fax transmissions will be equivalent to original documents. Notwithstanding the foregoing, at either party’s option, the Parties will deliver to one another original executed versions of this Agreement as promptly as possible after such request is made.