Effective January 1, 2019
1. Scope, Services and Fees
- AdLabs provides an online portal and website located at adlabs.ai made up of AdLabs proprietary technology (“AdLabs Platform”) for the provision of Services, which may include ad copy services (referred to as “SEM Services”).
- AdLabs shall supply the Services specified in an order form subject to these Terms. Customer agrees that AdLabs has the right to utilize employees or the services of any number of contractors or agents to complete the Services with the understanding that these Terms shall apply to such parties.
- Customer shall pay AdLabs all charges (the “Fees”) specified in an order form, and on the payment terms set out therein. If Customer is late in paying any Fees, AdLabs may, in its discretion, charge interest after the due date on all unpaid amounts at a rate of 1.5% starting on the payment due date until payment is made in full.
2. AdLabs Platform, Customer Content, & Licenses
- “Intellectual Property” means all patents, copyrights (including moral rights), trademarks, trade secrets, and other proprietary rights including the right of publicity and privacy rights.
- Access to Platform. Subject to all the terms and conditions of these Terms, during any period for which Customer has purchased a subscription to the AdLabs Platform, Customer may access and use the AdLabs Platform solely in connection with Services as defined in the applicable Order Form and in accordance with any scope of use restrictions designated in these Terms or applicable Order Form. Customer may permit its employees and contractors to access and use the Services solely on Customer’s behalf (“Authorized Users”) and provided that Customer is responsible for ensuring that its Authorized Users comply with these Terms. If Customer is given passwords to access the AdLabs Platform, Customer shall require that all users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify AdLabs if any user who has access to a user ID is no longer an employee of Customer. Customer shall be responsible for compliance by its employees and contractors with these Terms and shall notify such users of the use restrictions for access to the AdLabs Platform.
- Restrictions. Customer agrees that Customer will not itself or allow any third party to: (i) reverse assemble, reverse compile, or reverse engineer the Platform, or otherwise attempt to discover any software source code or underlying proprietary information; (ii) remove, efface or obscure any copyright notices, logos, or other proprietary notices or legends (whether AdLabs, its partners’, or any third party’s) from the Platform or other AdLabs materials obtained through the Services; (iii) use the Platform in any manner which adversely affects AdLabs or its customers, their data or security, or seek to access the data of any third party without AdLabs prior written authorization; (iv) use any “deep-link”, “page-scrape”, “robot”, “spider”, data mining, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, bulk download, copy, or monitor any portion of the Platform; or (v) use the Platform or AdLabs Services in any way that is not in compliance with all applicable laws, restrictions, and regulations of the United States and any applicable foreign jurisdiction, or in any way that infringes on third party rights.
- Ownership of Customer Content and AdLabs Platform. During the performance of the Services, AdLabs will create text and/or other creative content for advertisements (“Ad Creative(s)”) using the AdLabs Platform, and Customer may provide AdLabs with certain content, data, text, audio, video, images, logos, Guidelines or other content, in order for AdLabs to provide such Services (“Customer Content”), as may be further described in an order form. Customer retains any and all right, title and interest in and to Customer Content, including all Intellectual Property rights therein. AdLabs and its licensors retains any and all right, title and interest in and to the AdLabs Platform and all components thereof, including all Intellectual Property rights therein.
- Ownership of Ad Creatives. Provided that Customer adheres to all obligations in these Terms and has paid AdLabs in full, Customer shall be the owner of the Ad Creatives created by AdLabs that have been accepted by Customer including all Intellectual Property rights therein (“Works”) under an applicable Order Form, and AdLabs hereby assigns all right, title and interest in and to the Works, including all Intellectual Property rights therein, to Customer. AdLabs agrees to assist Customer, or its designee, at Customer’s expense to secure the Customer’s rights in the Works including the execution of all applications, assignments and all other instruments necessary to secure such rights.
- Customer Guidelines and Acceptance. During the course of the Agreement, Customer may give AdLabs certain guidelines relating to Ad Creatives (“Guidelines”). AdLabs agrees to use good faith efforts to adhere to such Guidelines in creating the Ad Creatives. Customer shall review and accept Ad Creatives through the AdLabs Platform or otherwise and AdLabs is not responsible for such Ad Creatives after acceptance by Customer, including any claims arising out of the Guidelines or Customer Content received by Customer.
- SEM Services. During the performance of the SEM Services, all campaigns to be optimized will be set to “rotate indefinitely” in Adwords and all Adgroups will be set to “rotate more evenly” in Bing to enable account optimization
Any non-public information disclosed by one Party to the other in connection with these Terms, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under these Terms. AdLabs may disclose Confidential Information to its own third party suppliers or service providers only if necessary and only for purposes related to the AdLabs services, and AdLabs will use reasonable endeavors to ensure that any such third party suppliers maintain such information confidential. Upon request of the Disclosing Party or upon termination of these Terms, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Confidential Information does not include information that (i) is part of the public domain; (ii) was already known to or in the receipt of the receiving party at the time of disclosure; (iii) was lawfully disclosed to the receiving party by a third party not otherwise subject to confidentiality; or (iv) was independently developed by a party without use of or reference to the other party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to a lawful court order requesting disclosure provided that the receiving party gives prompt notice to the disclosing party and allows, where practical, the disclosing party to seek protection of such Confidential Information and the receiving party only disclose such Confidential Information that is the subject of the order. Each Party’s confidentiality obligations hereunder shall continue for two years following termination of these Terms.
4. Representations and Warranties
- Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into these Terms and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, these Terms will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Customer further represents and warrants that the Customer Content and the Guidelines do not and will not infringe on third-party Intellectual Property rights, or any other third party rights including without limitation privacy and publicity rights and the Customer Content and Guidelines do not represent false or misleading advertising
5. Disclaimer of Warranty
EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS, THE ADLABS SERVICE AND ADLABS PLATFORM ARE PROVIDED BY ADLABS “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
6. Limitation on Liability
IN NO EVENT WILL ADLABS BE LIABLE IN CONNECTION WITH ANY MATTER ARISING OUT OF THESE TERMS FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THE POSSIBILITY OR CAUSE OF SUCH DAMAGES WAS KNOWN, AND IN NO EVENT SHALL ADLABS’S TOTAL LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT OF MONIES PAID OR OWED BY CUSTOMER TO ADLABS UNDER THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Customer shall indemnify, defend and hold harmless AdLabs, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses) or other liabilities (“Liabilities”), arising out of or resulting from any third-party claim asserted against AdLabs to the extent any claim arises out of (i) gross negligence, misconduct or criminal acts of Customer; (ii) the Customer Content or Guidelines; (iii) breach of these Terms by Customer; or (iv) failure to comply with applicable laws, rules and regulations. AdLabs shall provide Customer with prompt notice of any Liabilities arising under this section. Customer shall not settle any Liabilities that would require the payment of money by AdLabs or the admission of fault or responsibility by AdLabs without the express written consent of AdLabs. AdLabs shall have the opportunity to participate in the defense at its own cost.
These Terms commence on the date of execution of an Order Form that references these Terms, and shall continue in full force and effect until all Order Forms executed in accordance with these Terms have either expired or terminated (“Term”). Further, either Party may terminate these Terms, upon written notice to the other Party if such other Party commits a material breach of these Terms and such breach is not cured within the 30-day notice period.
- Binding Arbitration. Except as provided in this section, the Parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of these Terms shall be settled by binding arbitration to be held in San Francisco, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief), and the parties agree to the exclusive jurisdiction of the federal and state courts located in San Francisco County. California law shall apply to the merits of any dispute or claim, without reference to conflicts of law rules, that may arise under these Terms.
- Independent Contractors. Nothing contained in these Terms shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the parties. Except as contemplated by these Terms, neither Party hereto shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
- Entire Agreement; Amendments. These Terms, including all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. These Terms may only be modified by a written agreement dated subsequent to the date of these Terms and signed by a duly authorized representative of each Party.
- Assignment. Customer may not assign these Terms without the prior written consent of AdLabs, which shall not be unreasonably withheld.
- Severability. If a court of competent jurisdiction finds any provision or term of these Terms unenforceable, that provision or term will be modified to best effect the parties’ intent, and all other terms will continue in force.
- Waivers. The failure to exercise any right provided in these Terms shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
- Notices. All notices delivered in connection with these Terms must be given via a paper writing or email. Notices will be deemed given as of (i) three days from the postmark date if sent via first class mail to the address of the Party to be notified; or (ii) the day emailed to the correct email address of the Party to be notified.