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Augmetrics™ Terms and Conditions

Last Updated: April 3, 2022

These Terms and Conditions apply to users (“You” “Your”) of the Adworthy Inc. (“Adworthy” “Us” “We” “Our”) Augmetrics™, advertising, marketing, sales, and analytic services. Your access to the Services is subject to these Terms and Conditions (“Terms and Conditions”) and all applicable laws. BY USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

 

  1. Definitions
  2. Services Overview
  3. Fees and Billing
  4. Representations and Warranties
  5. Your Responsibilities
  6. Term and Termination
  7. Confidentiality
  8. Ownership and Intellectual Property Rights
  1. Data Privacy
  2. Indemnification
  3. Limitations of Liability
  4. Service Level Agreement
  5. Disclaimer of Warranties
  6. Changes to these Terms and Conditions
  7. Dispute Resolution
  8. General Provisions
  1. Definitions.
    • 1.1. “Agreement” means these Terms and Conditions in conjunction with any applicable agreement between the Parties, including, but not limited to, any applicable Order Form or Mutual Non-Disclosure Agreement.
    • 1.2. “Order Form” means the Augmetrics™ order form or forms and any ancillary Augmetrics™ terms completed and processed by and with You to sign up for the relevant Services.
    • 1.3. “Output” means the data, recommendations, insights, analyses or other information extracted from the Services.
    • 1.4. “Service(s)” or “Augmetrics™” means the provision and hosting of the optimized data service plan including any additional Adworthy software application identified during the ordering process, developed or licensed, operated, and maintained by Adworthy, accessible via Adworthy.com or another designated Adworthy website, or ancillary online or offline products and services provided to You by Adworthy, to which you are being granted access under these Terms and Conditions.
    • 1.5. “User” means Your employees, representatives, consultants, contractors, customers or agents who are authorized to use the Services and have been supplied user identifications and passwords by You or by or for Adworthy at Your request.

     

  2. Services Overview.
    Augmetrics™ analyzes Your marketing performance data uploaded into the Augmetrics™ platform (the “Platform”) (“Your Data”) by, among other things, cleaning and normalizing Your performance marketing data from sources like Google, Bing, Amazon, and Facebook, to identify the words and images your customers find most appealing, and then converting them into custom 1st party data audiences and inclusive ad targeting models. There are multiple levels of the Services for You to choose from. As part of the Services, Adworthy will provide You with use of Augmetrics™, including a browser interface and data transmission, access, and storage.
    • 2.1. Access and Use. Subject to Your payment of all applicable fees and compliance with the Agreement and the Adworthy Privacy Policy which can be found at https://www.Adworthy.com/legal/privacy-policy/, We grant You during the Term a personal, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services. You acknowledge and agree to the terms of service herein. In addition, You agree that unless explicitly stated otherwise, any new features that augment or enhance the Services, and/or any new service(s) subsequently purchased by You will be subject to these Terms and Conditions.
    • 2.2. Your Obligations.
      • 2.2.1. You Must Have Internet Access. In order to use the Services, you must have or must obtain access to the internet, either directly or through devices that access web-based content. You must also provide all equipment necessary to make such (and maintain such) connection to the internet.
      • 2.2.2. Accuracy Of Your Registration Information. You agree to provide accurate, current, and complete information (“Registration Data”) as prompted by the Registration and/or Order Form, which You will fill out online in order to gain access to the Services. You further agree to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. You acknowledge and agree that if You provide information that is intentionally inaccurate, not current or incomplete in a material way, or Adworthy has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Adworthy has the right to suspend or terminate Your account.
      • 2.2.3. User Email And Notices. You agree to provide Adworthy with Your Users’ email address(es), to promptly provide Adworthy with any changes to Your users’ email address(es), and to accept emails (or other electronic communications) from Adworthy at the email address You specify. Except as otherwise provided in these Terms and Conditions, You further agree that Adworthy may provide any and all notices, statements, and other communications to You through email.
      • 2.2.4. Passwords, Access, And Notification. Unless agreed in advance and noted in the applicable Order Form, the maximum number of Users that You may designate under Your account is five (5). Upon receipt of a temporary password to access the Services, each User must provide a unique permanent password to access the Services. You acknowledge and agree that You are prohibited from sharing passwords and/or usernames with unauthorized users. You will be responsible for the confidentiality and use of Your (including Your employees’) passwords and usernames.
      • 2.2.5. Third-Party Software & Security. 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 Adworthy. You agree to grant Adworthy access to Your performance marketing data. Until notified otherwise by Adworthy, You agree to use only software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Adworthy and to follow logon procedures for services that support such protocols. You acknowledge that Adworthy is not responsible for notifying You of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Adworthy or telecommunications facilities, including, but not limited to, the Internet. 
    • 2.3. Use Restrictions. Except as permitted through the Services (or otherwise by Us in writing), You shall not, and shall not permit a third party, to:
      • use the Services for any purpose other than for Your own internal business purpose or the purposes of your client;
      • license, sell, transfer, assign, distribute, host, rent, lease, or otherwise commercially exploit the Services;
      • modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Services, use unauthorized APIs, create more Accounts than necessary, or attempt to gain access in any way to data outside the scope of the Services;
      • remove any proprietary notices from the Services or other Adworthy materials;
      • use the Services to interact, filter or otherwise function with any data ‘scraped’ or otherwise extracted from a search engine web page and/or a search engine results page (“SERP”) from providers such as Google, Bing, DuckDuckGo or any similar system, You can provide Us with written permission from the identified search engine(s) authorizing You to use such scraped data for purposes consistent with the Services
      • deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Services; or
      • use the Services or other Adworthy materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any other party’s rights,, this Agreement, or applicable law.

         

  3. Fees and Billing
    • 3.1. Fees, Free Trial and Renewal. Unless otherwise indicated by Adworthy, fees for the subscription or use of the Services are payable and remitted to Adworthy, as further described in this paragraph immediately below. Adworthy charges and collects non-refundable fees in advance for use of the Services. No fees are refundable for any reason. During the Term, unless the parties agree otherwise, Adworthy will automatically renew and bill Your credit card or other accepted form of payment and issue an invoice every month, every quarter, each year on the subsequent anniversary, or as otherwise mutually agreed upon in writing between the Parties.
    • 3.2. Free Trial. Adworthy may enable you to register for a free trial before registering for the Services, at which point you will choose the level of the Services you wish to use. We will make the Services available to You on a trial basis free of charge until the end of the free trial period. ANY DATA BROUGHT INTO THE SERVICES UNDER THESE TERMS AND CONDITIONS, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST AT THE CONCLUSION OF THE FREE TRIAL UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO SERVICSs THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE SERVICES THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 4 (REPRESENTATIONS AND WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
    • 3.3. Storage Service Fees. You may elect to make use of a third-party storage service (“Third-Party Storage Service(s)”) to the extent integrations thereto are supported by Adworthy. Please contact Us for a current list of Third-Party Storage Services Adworthy supports. If You wish to make use of a Third-Party Storage Service, You will need to complete a registration with the relevant third party. The fee for use of a Third-Party Storage Service is billed separately by the third party. These charges (and all other elements of Your Third-Party Storage Service account) are Your responsibility and are in addition to Adworthy licensing or Service fees payable to Adworthy. Adworthy disclaims all liability for disconnections or other interruptions to any Third-Party Storage Services You use in connection with these Terms and Conditions
    • 3.4. Taxes and Duties. Payments made by You under these Terms and Conditions exclude any taxes or duties payable in respect of the goods or Services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Adworthy, You must pay to Adworthy the amount of such taxes or duties in addition to the fees under these Terms and Conditions. Notwithstanding the foregoing, You may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, You shall have the right to provide to Adworthy with any such exemption information and Adworthy will use reasonable efforts to provide such invoicing documents as may enable You to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
    • 3.5 Non-Payment and Suspension. All payments for fees shall be due according to the terms in Section 3 and as provided on the Order Form and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Adworthy herein, Adworthy reserves the right to suspend or terminate these Terms and Conditions and Your access to the Services if Your account becomes delinquent for five (5) or more business days. Delinquent invoices are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If You or Adworthy initiates termination of these Terms and Conditions, You will be obligated to pay any balance due on Your account. You agree that Adworthy may charge such unpaid fees and charges to Your credit card or otherwise bill You for such unpaid fees and charges. You agree and acknowledge that Adworthy has no obligation to retain Your Data and that Your Data may be irretrievably deleted without notice if Your account becomes delinquent for thirty (30) or more days.

       

  4. Representations and Warranties.
    • 4.1. By You. You represent and warrant that: (a) All Users are at least 18 years or older; (b) You have the right to enter into these Terms and Conditions; (c) You grant all necessary rights to Adworthy, including, but not limited to, access to all data necessary for the use of the Services and will perform Your obligations under these Terms and Conditions; (d) Your content and sites do not include and do not give access via hyperlinks to any property containing materials that are: obscene, infringe or misappropriate third party rights, or contrary to these Terms and Conditions or applicable law; (e) Your content, sites, and Your use of the Services will comply at all times with these Terms and Conditions and applicable law; (f) Your collection, transfer, use and disclosure of all data under these Terms and Conditions will not violate the rights of any third-party (including any end users) or Applicable Law; and (g) You will not attempt to identify, re-identify, reverse engineer or re-create the Services from the Output.
    • 4.2. By Adworthy. Adworthy represents that: (a) it has the right to enter these Terms and Conditions; (b) grants all rights necessary and will perform its obligations under these Terms and Conditions; and (c) the Services will be provided substantially in accordance with these Terms and Conditions and any applicable MSA and SOW. For any breach of this Section 4.2, Adworthy’s sole liability and Your sole remedy will be re-performance of the Services by Adworthy or to exercise Your termination rights.

       

  5. Your Responsibilities.
    • 5.1. Accounts. You are solely responsible for the use of Your account. You are responsible for ensuring that all information used to set-up and maintain your account is up-to-date, complete, and accurate. Account passwords and log-in details may not be shared with any other person or entity, other than your employees and third-party contractors who you authorize to access your account and use Our Services on Your behalf and who have agreed to comply with these Terms and Conditions (“Authorized Users”). You are responsible for maintaining the security of your account password and login details. You are solely responsible for any use of your account. You agree to promptly notify Us of any breach or suspected breach of security, misuse, or unauthorized access.
    • 5.2. Your Content. You are responsible for all Ads, background images, trademarks, logos, company names, fonts, hex codes, images, graphics, text, audio, video files, product feeds, and other content in any media and format that is provided by You or obtained by Adworthy on Your behalf for use with the Services (“Your Content”). Although Adworthy may from time to time monitor or review discussions, chats, postings, transmissions, bulletin boards, and the like on the Services, Adworthy is under no obligation to do so and assumes no responsibility or liability arising from the content of any such locations nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information contained within such locations on the Services. You are prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Adworthy will fully cooperate with any law enforcement authorities or court order requesting or directing Adworthy, to disclose the identity of anyone posting any such information or materials. You are prohibited from transmitting, sharing, or otherwise providing access to any sensitive information including, but not limited to, personal characteristics, behavior, religious or political convictions, sexual preferences, employment and education data, financial and medical information with Adworthy.
    • 5.3. Compliance with Laws. Your use of the Services must comply with all applicable laws. This includes laws applicable to you and also laws applicable to Adworthy and the recipients of any email. Examples of applicable laws include laws relating to spam or unsolicited commercial email (UCE), privacy (Federal Trade Commission Act, Children’s Online Privacy Protection Act (COPPA), EU General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA)), security, obscenity, defamation, intellectual property, pornography, terrorism, homeland security, gambling, child protection, and other applicable laws. It is your responsibility to know and understand the laws applicable to your use of the Services.

       

  6. Term and Termination.
    • 6.1. Term. These Terms and Conditions commence on the Effective Date as stated on the applicable online or offline Order Form and continue for the “Term” as defined in the Order Form. Unless earlier terminated, these Terms and Conditions will automatically renew at the end of the Term specified in the Order Form at Adworthy’s then current rates, unless a different rate is specified in the Order Form.
    • 6.2. Termination. Either party may terminate these Terms and Conditions or reduce the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing or via email at least thirty (30) business days prior to the start date of the Services for the following Term. If You register for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any purchased Services ordered by You. Within sixty (60) days of receipt of notice of termination by You, Adworthy will delete all Your Data held in your account, except where Adworthy is required to retain copies under applicable laws.
    • 6.3. Breach. Any breach or delinquency of Your payment obligations or unauthorized use of the Services will be deemed a material breach of these Terms and Conditions. Adworthy, in its sole discretion, may terminate Your password, account or use of Services and these Terms and conditions if You breach or otherwise fail to comply with these Terms and Conditions. In addition, Adworthy may terminate a free account at any time in its sole discretion. You agree and acknowledge that Adworthy has no obligation to retain Your Data, and may delete Your Data, if You have materially breached these Terms and Conditions, including, but not limited to, failure to pay outstanding fees, and such breach has not been cured within five (5) business days of payment delinquency or notice of such breach; provided, however, notwithstanding anything to the contrary, Adworthy may, in its sole discretion, immediately terminate these Terms and Conditions and take any actions as described herein related to or in connection with Your unauthorized use of the Services.

       

  7. Confidentiality.
    Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed Disclosing Party; (b) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (c) is or subsequently becomes known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; or (d) is independently developed by Receiving Party without reference to Confidential Information. Each Receiving Party will (i) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under these Terms and Conditions; (ii) not disclose the Disclosing Party’s Confidential Information to a third-party unless the third-party must access the Confidential Information to perform in accordance with the Agreement and the third-party has agreed to confidentiality terms no less protective than those set forth in this Section 7; and (iii) maintain the confidentiality of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by applicable law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by applicable law) of such requirement to the Disclosing Party before such disclosure and reasonably assist the Disclosing Party, at Disclosing Party’s cost, in obtaining an order protecting the Confidential Information from public disclosure.

     

    Notwithstanding the above, Adworthy may use aggregate information to measure the service usage patterns and characteristics of its user base and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address.

     

    To the extent that there is a conflict between the provisions of these Terms and Conditions and any applicable Mutual Non-Disclosure Agreement, the terms of the Mutual Non-Disclosure Agreement shall prevail.

     

    The obligations in this Section 7 will survive termination of these Terms and Conditions until the expiration of three (3) years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under these Terms and Conditions remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.

     

  8. Ownership and Intellectual Property Rights.
    • 8.1. Adworthy Property. You acknowledge and agree that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content or information presented to You through the Services or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except for the limited right to access and use the Services under the Agreement, You acknowledge and agree that, as between the parties, Adworthy (or its licensors) have and will retain any and all rights, title, and interest in the Services, and all derivative works made by any person or entity in or to the Services, including, but not limited to, patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights (collectively the “Intellectual Property Rights”) associated with the Services. You will not assert or cause any other party (including, without limitation, any User) to assert any right, title, or interest in or to the Services or other portion of Adworthy’s Intellectual Property Rights. You grant Adworthy a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its software Services, or business operations any suggestions, enhancement requests, recommendations or other feedback provided by You, including its Users, relating to Adworthy’s software, Services or business operations. These Terms and conditions are not a sale and except as set forth in these Terms and Conditions, Adworthy does not give You any rights of ownership in, or related to, the Services, any Adworthy software or the Intellectual Property Rights owned by Adworthy.
    • 8.2. Your Property. You acknowledge and agree that You own or control all rights in and to information, data, pricing, trademarks, text, graphics, images, illustrations, and all other materials and content in any format provided to Us by You (“Your Data”) under this Agreement in connection with Adworthy’s performance of the Services. For the Term of this Agreement, You grant Adworthy a non-exclusive, non-transferable limited license to use Your Property to perform the Services for You. Adworthy agrees it has no ownership interest in Your Data. We may use Your Data anonymously and in the aggregate to measure the service usage patterns and characteristics of its user base or other methods to improve our services and may include such aggregate information about its audience in promotional materials or reports to third parties.
      You may, but are not obligated to, provide suggestions, enhancement requests, recommendations, or other feedback to Adworthy relating to Adworthy’s software, the Services, or business operations (“Feedback”). To the extent You provide Feedback, You grant Adworthy a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any such Feedback into Our software, the Services, or Our business operations.
    • 8.3. Third-Party Property. Any third-party trademarks, product or company names referenced in the Services or other Adworthy materials are the property of their respective owners and may not be used without the prior written permission of the owner.

       

  9. Data Privacy.
    • 9.1. Your Data Privacy Obligations.
      • 9.1.1. Compliance with Laws. You agree to comply with all applicable laws, including, without limitation, the California Consumer Protection Act (CCPA) or EU General Data Protection Regulation (GDPR).
      • 9.1.2. Posting a Privacy Policy. You are responsible for posting an online privacy policy in accordance with applicable laws.
      • 9.1.3. Opt-Out. You agree to inform end users on how they may opt out from receiving cross-site advertising, by accessing their device setting or visiting and employing the controls provided by the Digital Advertising Alliance (DAA). 
    • 9.2. Security. Adworthy shall maintain appropriate administrative, physical, and technical safeguards designed to protect the confidentiality, availability, and integrity of personal data provided through the Services including, but not limited to password controls and limiting access to Your accounts as described in Section 2.2.
    • 9.3. Security Incident. In the event of a Security Incident, Adworthy will notify You in accordance with Adworthy’s obligations under the applicable law or regulatory requirement that applies to the Security Incident. “Security Incident” shall mean the misappropriation of personal data located on Adworthy systems or processed by providing the Services that compromises the security, confidentiality, or integrity of such personal data. Security Incidents will not include unsuccessful attempts or activities that do not compromise the security of Your Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems. Notification(s) of any Security Incident(s) will be delivered to the Your email address or, at Adworthy’s discretion, by direct communication (for example, by phone call or an in-person meeting). You are solely responsible for ensuring that Your email address is current and valid. Adworthy will not assess the contents of Your Data in order to identify information subject to any specific legal requirements. You are solely responsible for complying with incident notification laws applicable to You and fulfilling any third party notification obligations related to any Security Incident(s). Adworthy’s notification of or response to a Security Incident under this Section will not be construed as an acknowledgement by Adworthy of any fault or liability with respect to the Security Incident.

       

  10. Indemnification.
    • 10.1. By Adworthy. Adworthy shall defend, at its sole expense, You against claims brought against You by any third party alleging that Your use of the Services, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of a patent claim(s), copyright, or trade secret rights or any other third-party intellectual property rights. Adworthy will pay damages finally awarded against You with respect to such claims, including reasonable attorney’s fees in connection with such defense. This obligation of Adworthy shall not apply if the alleged infringement or misappropriation results from use of the Services in conjunction with any other software or service not provided by Adworthy or in the event of free (no fee) or trial use of the Services. You will be entitled to indemnification only if:
      • 10.1.1. You notify Adworthy in writing within ten (10) calendar days of the date You first become aware of a claim;
      • 10.1.2. Adworthy has sole control of the settlement, compromise, negotiation and defense of any such action; and
      • 10.1.3. You give Adworthy all reasonably available information and assistance, at Adworthy’s expense. Adworthy may, at its option, obtain the right to continued use of the Services, substitute other equivalent service, or modify the Services so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Adworthy’s sole discretion, terminate Your right to the allegedly infringing Services and refund to You a pro rata portion of the amount which You have paid for such Services. The foregoing indemnity will not apply to any infringement claim arising from:
      • 10.1.4. modification of the Services or Output by parties other than Adworthy;
      • 10.1.5. combination of the Services with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the services; or
      • 10.1.6. use of the Services other than in accordance with Adworthy’s instructions and documentation. THE FOREGOING STATES ADWORTHY’S SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND. 
    • 10.2. By You. You shall indemnify, defend and hold harmless Adworthy and its Affiliates and any of their respective directors, officers, employees, subcontractors and agents from and against any and all liabilities, obligations, penalties, claims, judgments, demands, actions, disbursements of any kind and nature, suits, losses, damages, costs and expenses (including, without limitation, reasonable attorney’s fees) arising out of or in connection with (a) Your negligence or willful misconduct, (b) Your breach of these Terms and Conditions; (c) Your misuse of the Services; (d) claims brought against You by any third party arising or related to an allegation that the use of the Services violates, infringes, or misappropriates the intellectual property rights of a third party, and (e) Your violation of any applicable laws. You will pay damages finally awarded against Adworthy with respect to third party claims, including reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by Your conduct or by the conduct of a third party using Your access credentials. Adworthy shall have the right to participate in the defense or settlement with counsel of its own choosing at Adworthy’s expense, provided however that the same shall be at Your expense if You fail to put on an adequate defense of Adworthy.

       

  11. Limitations of Liability.
    IN NO EVENT SHALL ADWORTHY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY GENERAL, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, BREACH OF SECURITY, LOST OR DAMAGED DATA, OR ATTORNEYS’ FEES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, THE SERVICES, OR ANY APPLICABLE AGREEMENT. EXCLUDING ADWORTHY’S INDEMNIFICATION OBLIGATIONS, THE TOTAL LIABILITY OF ADWORTHY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.

     

  12. Service Level Agreement.
    There shall be no service level agreement associated with Your use of the Services. Adworthy makes no guarantee of access to the Services or Your Data.

     

  13. 13. Disclaimer of Warranties.
    ADWORTHY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH. ADWORTHY DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR; (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

     

  14. Changes to these Terms and Conditions.
    We may update or otherwise modify these Terms and Conditions from time to time. If we make material changes, we will post the updated Terms and Conditions on this page with a “Last Updated” effective date of the revisions. Your continued use of the Services after an update will constitute acceptance.

     

  15. Dispute Resolutions. Any dispute, controversy or claim concerning or relating to these Terms and Conditions shall be resolved in the following manner:
    • 15.1. Escalation. Any controversy or claim arising out of, relating to or in connection with this Agreement shall first be submitted by the parties in writing to a panel of two senior executives, one appointed by Adworthy and one appointed by You, who shall promptly meet and confer in an effort to resolve such dispute. In the event the executives are unable to resolve any dispute within thirty (30) days after submission of the dispute and the parties have not agreed to an extension of the time within which the dispute may be resolved by the executives, either party may then refer such dispute to mediation in accordance with paragraph 15.2 hereof.
    • 15.2. Mediation. If the parties have not been successful in resolving a dispute through the escalation process referred to in paragraph 15.1, the parties agree to attempt to resolve the dispute through mediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the option of a party, to mediation under the Commercial Arbitration Rules of the American Arbitration Association. The mediation shall be conducted in Wilmington, Delaware. Each party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of the American Arbitration Association. All defenses based on passage of time shall be suspended pending the termination of the mediation. Nothing in this clause shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending mediation.
    • 15.3. Continued Performance. Except where clearly prevented by a dispute arising under this Section 15, the parties shall continue performing their respective duties, obligations and responsibilities under these Terms and Conditions while the dispute is being resolved in accordance with this Section, unless and until such obligations are lawfully terminated or expire in accordance with the provisions hereof.

       

  16. General Provisions.
    • 16.1. Independent Contractors. It is expressly agreed that the Parties shall be independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture or agency. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior written consent of such other party.
    • 16.2. Assignment. These Terms and Conditions and all rights and obligations hereunder may not be assigned without the written consent of the other party.
    • 16.3. Severability. Should any part of these Terms and Conditions be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect without invalidating the remaining provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
    • 16.4. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. Our failure to require the performance of any term or obligation of these Terms and Conditions, or the waiver by any party of any breach of these Terms and Conditions, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
    • 16.5. Survival. The respective indemnities, representation and warranties, and our rights under these Terms and Conditions will survive any termination of these Terms and Conditions.
    • 16.6. Force Majeure. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, cyberattack, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.
    • 16.7. Hierarchy of Documents. In the event of conflict among these Terms and Conditions and any applicable Order Form, the order of precedence is as follows: (i) the Order Form; and (ii) these Terms and Conditions.
    • 16.8. Publicity Rights. You grant Adworthy the right to include You as a customer in Adworthy’s promotional material. You can opt out by sending an email request to sales@Adworthy.com.
    • 16.9. Governing Law. These Terms and Conditions shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights, and remedies of the Parties hereunder shall be determined in accordance with such laws. The Parties agree to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware.
    • 16.10. Headings. The headings contained in these Terms and Conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms and Conditions.