AvidTrak Services Agreement
Welcome to AvidTrak a product of Media Flint, Inc. Media Flint is located at: 800 West El Camino Real, Suite 180, Mountain View, CA 94040. Email: info@AvidTrak.com. References in this Agreement to "we", "us" "our," the "Company" or "AvidTrak" refer to AvidTrak. 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 AvidTrak. You intend to be legally bound by this Agreement.
2. Privacy and Disclosure:
3. License Grant and Restrictions:
3.1 Subject to the terms and conditions of this Agreement, AvidTrak 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 AvidTrak 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 AvidTrak; (c) copy, publish, display, distribute and translate the manuals and technical documentation (whether online or otherwise) provided by AvidTrak ("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 AvidTrak. 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 AvidTrak.
3.2 You may not access the Service if you are a direct competitor of AvidTrak or for purposes of benchmarking, analyzing, or comparing the Service to others not owned by AvidTrak or for any other competitive purpose. AvidTrak 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 AvidTrak content on any other server or Internet based device without AvidTrak'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 AvidTrak. 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. AvidTrak 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 AvidTrak 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, AvidTrak 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 AvidTrak 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 AvidTrak. Until notified otherwise by AvidTrak, you agree to use software that supports the Secure Socket Layer protocol or other protocols accepted by AvidTrak and to follow the logon procedures for that service. You acknowledge that AvidTrak'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 AvidTrak 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 AvidTrak.
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 AvidTrak has reasonable grounds to believe that such information is untrue, inaccurate or not current or complete in a material way, AvidTrak has the right to terminate your access to the Service. As a condition hereunder, you shall at all times provide AvidTrak 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 AvidTrak 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 AvidTrak with respect to: (a) investigation by AvidTrak of any suspected or alleged violation of this Agreement and (b) any action by AvidTrak to enforce this Agreement. AvidTrak may suspend or terminate any User Account upon notice to you in the event that AvidTrak reasonably determines that such User Account has been involved in a violation of this Agreement. You remain liable for the losses incurred by AvidTrak 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 AvidTrak 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 AvidTrak'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 AvidTrak 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 AvidTrak 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 AvidTrak. 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. AvidTrak's Service may provide links to third party sites or resources. AvidTrak has no control over such third party sites or resources and you acknowledge and agree that AvidTrak 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 AvidTrak, then you agree to permit such third party site to share details of your transactions with them with AvidTrak, and you waive any objection to any referral fee earned by AvidTrak.
5. Customer Advertising Accounts.
5.1 Customer Advertising Account Access. AvidTrak's Service is designed to allow you to manage certain advertising campaigns through your AvidTrak User Account and accounts you establish with third party advertising companies. You agree to allow AvidTrak 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 AvidTrak to automatically access such Customer Advertising Accounts. You agree that AvidTrak 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 AvidTrak's Service. You shall indemnify and hold AvidTrak, 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 AvidTrak's option, you shall assume control of the defense and settlement of any Claim subject to indemnification by you (provided in such event, AvidTrak 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 AvidTrak's prior written consent).
5.2 Customer Beware. You acknowledge that AvidTrak 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 AvidTrak Service is dependent upon such third party providers, and is subject to errors in creation, Transmission, data loss, time delay and other factors beyond AvidTrak'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 AvidTrak, is the only information upon which you are entitled to rely with respect to modifications or data related to an advertising campaign. AvidTrak 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 AvidTrak, whether forward or backward looking or based upon current circumstances are nothing more than the opinion of AvidTrak based upon the best information AvidTrak was able to access from such third party provider and based upon the time at which such data was Transmitted to AvidTrak (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 AvidTrak 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. AvidTrak cannot be responsible for the speed, accuracy or completeness of the instructions you transmit to your Customer Advertising Accounts through the Service because AvidTrak 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 AvidTrak 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 AvidTrak or the third party advertising providers you access through the Service or Application. You acknowledge and agree that AvidTrak 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. AvidTrak 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 AvidTrak or third party advertising providers with whom AvidTrak has a relationship may, but have no duty to, monitor any User Account activity for the purpose of ensuring quality, improving AvidTrak products and the Service, and compliance with these Terms and the Terms AvidTrak or its affiliates may have with third parties. You shall not try to interfere with such monitoring and agree that AvidTrak or its third party licensors may use technical means to overcome any attempted interference.
6. Intellectual Property.
AvidTrak alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the AvidTrak Service, and the AvidTrak Insights and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service (collectively "AvidTrak Property"). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the AvidTrak Property. In the event AvidTrak desires to seek any intellectual property protection for the AvidTrak 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 AvidTrak's intellectual property ownership, then you shall upon request, and without further consideration, execute such further documents as AvidTrak may reasonably request to evidence such rights in AvidTrak. The AvidTrak name, the AvidTrak logo, and the product names associated with the Service and all related indicia are AvidTrak 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 AvidTrak Property shall inure to the benefit of AvidTrak.
7. Payments for Usage.
7.1 Free Trial Period. As a valued customer of AvidTrak, AvidTrak at its discretion, may provide the Service to you on a trial basis during which you will not be charged by AvidTrak for use of the Service (the "Evaluation Period"). Unless otherwise expressly agreed, your Evaluation Period shall terminate fifteen (15) calendar days from the date on which your User Account is first created and activated with AvidTrak. 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 AvidTrak of such fact. In consideration of any such Evaluation Period, you agree to use your reasonable good faith efforts to provide feedback to AvidTrak 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 AvidTrak's discretion to terminate your Evaluation Period or access to the Service. All evaluation information provided to AvidTrak by Customer shall be AvidTrak 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 AvidTrak providing the Service, you shall pay to AvidTrak all applicable fees billed to you by AvidTrak in accordance with the AvidTrak Pricing Information and/or Monthly Fees applicable to your User Account and set forth for you at the AvidTrak 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 AvidTrak 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 AvidTrak 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 AvidTrak 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, AvidTrak 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 AvidTrak 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, AvidTrak reserves the right to suspend the Service provided to you and in its discretion to terminate this Agreement. AvidTrak preserves all other defenses and rights and shall have no liability to you for suspending your account. You agree and acknowledge that AvidTrak is not responsible to retain your User Account data and that AvidTrak may delete your User Account data from any server or archival records maintained by AvidTrak, except as needed to later evidence the accuracy of the Fees. AvidTrak'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 AvidTrak's net income. AvidTrak 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 AvidTrak Service pursuant to any applicable terms and conditions that may exist between you and the third party advertising providers. You acknowledge that AvidTrak is in no way responsible for any charges incurred under Customer Advertising Accounts and you agree to indemnify and hold harmless AvidTrak from all such charges, and not to make any statement or claim to the contrary.
7.3 Refund of Excess Deposit. Upon termination of your AvidTrak services agreement AvidTrak shall refund to your credit card any excess deposit amount left over within your AvidTrak account. The excess deposit amount shall be calculated by AvidTrak and will be classified as Surplus funds amount in account less (monthly prepaid billing for phone number(s) rental + monthly talk time phone usage). Please allow up to 30 days for receipt of your refund. For question regarding your refund you may email Billing@AvidTrak.com.
8. Term and Termination.
8.1 Term. This Agreement shall commence on the first day of Account Initiation (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. AvidTrak 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. AvidTrak 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. AvidTrak 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 AvidTrak to incur excessive API charges, AvidTrak may, at its option terminate this Agreement or deny your continued use of the Service. AvidTrak will provide reasonable notice prior to taking the above actions. Any breach of your payment obligations or unauthorized use of AvidTrak'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 AvidTrak and make no further use of any Confidential Information, Documentation or other items belonging to AvidTrak. AvidTrak may destroy or otherwise dispose of any Customer data not yet aggregated into AvidTrak Insights in its possession. Upon expiration or termination, AvidTrak shall cease to use any Customer brands, logos or trademarks as contemplated by Section 4.5, provided, however, that AvidTrak 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 AvidTrak shall be entitled to complete distribution of any and all printed materials making use of Customer marks as were prepared during the Term, and AvidTrak 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. AvidTrak 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.
AvidTrak 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 AvidTrak for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of AvidTrak 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 AvidTrak'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 AvidTrak 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 AvidTrak 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, AvidTrak'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 AvidTrak of such required disclosure and will cooperate with AvidTrak, at AvidTrak'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 AvidTrak'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 AvidTrak, the Service, nor shall you solicit or attempt to solicit or otherwise interfere in the relationship between (i) any prospective customer or partner of AvidTrak, (ii) any employee or contractor of AvidTrak, or (iii) any person reasonably believed to be a licensee of AvidTrak. 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 AVIDTRAK 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 AVIDTRAK 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 AVIDTRAK WITH RESPECT TO ACTS AND OMISSIONS BY ADVERTISERS AND WITH RESPECT TO USER ACCOUNT DATA TRANSMITTED THROUGH THE AVIDTRAK SERVICE.
THE AVIDTRAK SERVICE AND ANY THIRD-PARTY OR USER-PROVIDED DATA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH AVIDTRAK 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, AVIDTRAK, 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.
AVIDTRAK, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE AVIDTRAK SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE AVIDTRAK SERVICE WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE AVIDTRAK SERVICE, OR THE NETWORK DEVICES AND SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
AVIDTRAK, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE AVIDTRAK SERVICE IN TERMS OF EFFECTIVENESS, ACCURACY, RELIABILITY, OR OTHERWISE. AVIDTRAK 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 AVIDTRAK 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 AVIDTRAK SERVICE, OR ANY OTHER INTERACTIONS WITH AVIDTRAK, EVEN IF AVIDTRAK OR A AVIDTRAK 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, AVIDTRAK'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL THE TOTAL LIABILITY OF AVIDTRAK 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 AVIDTRAK SERVICE, (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE AVIDTRAK 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 AVIDTRAK 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 AVIDTRAK.
13. Relationship - Independent Contractors.
You and AvidTrak 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.
AvidTrak 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 AvidTrak'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 AvidTrak by sending an e-mail to AvidTrak at info@AvidTrak.com. Such notice shall be deemed effective when received by AvidTrak.
15. Modification of Terms.
AvidTrak 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 AvidTrak'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 AvidTrak, 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 AvidTrak 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 AvidTrak.
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 California 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 Los Angeles, CA. 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.
17.5 Equitable Relief. You acknowledge that any breach by you of this Agreement may cause irreparable damage or injury to AvidTrak, for which the award of damages would not be adequate compensation. You agree that AvidTrak 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 AvidTrak may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which AvidTrak may be entitled at law or in equity.