TERMS OF SERVICE
Version 2.1.6 ©2023
These Terms of Service together with any applicable Statement of Work, Insertion Order(s), Service Agreement, and/or Product Addendum(s), (collectively, the “Agreement”) describe the terms and conditions under which you (“Customer”) may receive and access Services of AGILITY DIGITAL, Inc. (“Agility”).
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, USING AGILITY’S SERVICES, OR CONTINUING TO USE THIS WEBSITE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.
IF CUSTOMER IS AN AGENCY OR A PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF ITS OWN CUSTOMER, THEN CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND ITS CUSTOMER, AND AGREES THAT THE TERM “CUSTOMER” AS USED IN THIS AGREEMENT ALSO REFERS TO THAT CUSTOMER.
AGILITY MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WITHOUT WRITTEN OBJECTION WITHIN 5 WORKING DAYS, WILL CONSTITUTE ACCEPTANCE.
- "Ad" means any creative advertisement (in any form, including without limitation display, video, email, TV or Internet) that is targeted to an end-user through the Services.
- “Applicable Law” means any applicable federal, state of Utah law and foreign laws or regulations or any industry self-regulatory rules or guidelines (including, but not limited to, the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, the General Data Protection Regulation (EU) 2016/679) that relate to a party’s obligations under this Agreement.
- “Brand Assets” means all logos, Ads, background images, trademarks, fonts, hex codes, images, graphics, text, audio, video files, product feeds, ad copy (including for use in email campaigns) and other content in any media and format provided by or on behalf of Customer or obtained by Agility for use with the Services.
- “Customer Content” refers to any data, information, media, graphics, images, text, and other materials that the customer provides, uploads, submits, or otherwise makes available to the Service in the course of using the Service for programmatic advertising. This can include, but is not limited to, ad creatives, campaign specifications, targeting parameters, and any other content used in the creation, execution, and management of advertising campaigns. Customer Content does not include any data or information that is generated by the Service itself or collected from users who interact with the customer's ads.
- “Customer Data” means any and all information, data, materials, works, expressions, or other content that are provided or made available by or on behalf of Customer in connection with the services provided hereunder. This may include data about Customer’s end users, Customer’s clients, or prospective buyers provided by Customer or obtained by Agility in connection with the Services at Customer's instruction. Customer Data does not include Service Data.
- “Confidential Information” shall mean any proprietary, non-public, or confidential information relating to a party’s (the “Disclosing Party”) technology or business that is disclosed hereunder to the other party (the “Receiving Party”); or any information designated in writing by the disclosing party as “confidential” or “proprietary", or should reasonably be deemed as such.
- “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology (including those setting forth any technical requirements) that are provided to Customer (whether by email, screen or click-through display, in-person, or any other method).
- “Feedback” means information regarding the features and performance of the Services and Agility Materials, including (without limitation) reports of failures, errors, bugs, or other malfunctions that Customer encounters through its use of the Services.
- “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that Agility has partnered with to provide the Services.
- "Agility Materials” means the Platform, Agility API, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service, including related modifications and derivative works. Agility Materials includes Service Data.
- “Performance Data” means performance and measurement data made available through the Platform that relates to Customer's Ads, campaigns, and use of the Services (whether reported on an aggregated or individual level).
- “Platform” means the Agility website, dashboard, SDK, and tools used by Customer to access any of the Services and any third-party tools provided to Customer to facilitate the Services.
- “Product Addendum” means any Service-specific terms and conditions.
- “Services” means any Agility offering that Customer agrees to receive, subject to this Agreement, any applicable Product Addendum(s), and, if applicable, Insertion Order(s), along with any other documentation provided by Agility related to the Services. Services also include Customer support, troubleshooting, creative advertisement services, and account management services associated with the Services.
- “Service Data” means any data (and each component of such data, or derivative of such data) that is collected by Agility by any means, wether from end users using a pixel (or other script or code) installed on Customer's website, an integrated mobile SDK, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include Customer Data or Performance Data but does include data derived from Customer data. If Customer has configured or agreed for Agility to implement the pixel (or other script or code) to send hashed end user email addresses from Customer's website to Agility or has authorized Agility to collect and store hashed end user email addresses, these hashed end user email addresses will be Service Data.
- “Technology” means the Agility proprietary technology that allows Agility to provide the Services, including the Agility pixel (or other script or code), the Agility API, the SDK, or other mutually agreed upon means.
1. Agility Services
1.1 The Services. The Customer may receive services as outlined in the Summary of Work, Statement of Work, Service Agreement or Master Service Agreement and any other services offered to Customer by Agility or selected by Customer through the Platform where a Summary of Work, Statement of Work, Service Agreement, or Master Service Agreement is not required. Unless otherwise indicated by Customer in writing, whether a change order, Product Addendum, or authorized communication, this Agreement will apply to any and all Services provided by Agility to Customer.
1.2 Agility License Grant. Subject to payment of all applicable fees and Agreement terms, (1)Agility grants Company limited, worldwide and non-transferable rights without sublicense: (a) for applicable Services, to access and use Platform & Documentation internally for Company's own benefit, in connection with the receipt of Services; (b) for web-related Services, to integrate pixel or other script/code into Company's website; (c) for mobile-related Services, to integrate Company's MMP with end-users across mobile app/browser channels; and (d) to integrate through other mutually agreed upon means (e.g. Agility API). (2) Agility grants Company a nonexclusive, royalty-free, fully paid, non-transferable, worldwide right and license to use, disclose, and modify, the Performance Data for the company's exclusive use.
1.3 Respective License Grants by Customer and by Agility
(a) License to Customer Content. The Customer grants Agility a non-exclusive, worldwide, royalty-free, sub-licensable and transferable license to access, use, copy, distribute, reproduce, adapt, modify, perform, display, publish, transmit, format, store, and archive Customer Content and or Brand Assets for the purpose of providing the Services, supporting Customer’s use of the Services, and in promotional materials related to the Services. The Customer agrees that Agility will retain ownership of its underlying techniques, know-how, templates, and design methods related to Services. The Customer agrees to produce and or provide to Agility requisite Brand Assets as requested by Agility to facilitate Customer’s creative requests.
(b) License to CRM Data. To the extent not already covered by licensing or ownership provisions herein, Customer also grants Agility a non-exclusive, worldwide, royalty-free license to: (a) use, access, copy, transmit, index, store, aggregate, and display any information, including Customer CRM Data obtained by Agility in connection with the Services, that is provided by or to Customer, whether by uploading, accessed via an authorization framework or API, transmitted to or entered into on the Platform, in order to perform the Services; and (b) to use, publish, display, and distribute de-identified, aggregated information derived from such information and from Customer’s use of the Service for purposes of improving Agility’s products and Services, and for benchmarking and reporting, provided that any such data is not publicly identified or identifiable as originating with or associated with Customer or any individual person.
(c) Cross-Device Services. Customer acknowledges that: (i) such collection and/or usage of hashed email addresses and any other user identifiers will be Service Data; and (ii) hashed end- user email addresses and any other user identifier from Customer's website will be stored as a persistent part of Agility’s cross-device graph. Customer further agrees that: (iii) Agility may combine such hashed emails or other user identifiers with data or hashed emails or other user identifiers of other participating clients in order to recognize users across devices; and (iv) that Customer will make the necessary disclosures of these data collection practices in their privacy notice, as required by Applicable Law, including by providing appropriate “just-in-time” notices to end-users at the point in time when an end-user provides an email address to Customer in order to disclose that the email will be hashed, stored, and may be combined with other identifiers for cross-device recognition purposes by Agility).
1.4 Beta Versions. From time to time, Agility may make available for Customer to try, at Customer’s sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, or a similar description (each, a "Beta Version"). Beta Versions are intended for evaluation purposes and not for production use, are not supported (i.e. Customer or technical support teams), and may be subject to additional terms. Agility may discontinue Beta Versions at any time in its sole discretion and may never make them generally available. Agility has no liability for any harm or damage arising out of or in connection with a Beta Version. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND TRIALS OF THE SERVICE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND SECTION 11.2 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO BETA VERSIONS OR TRIALS OF THE SERVICE.
1.5 Technical Requirements. Customer will comply with all technical requirements for use of the Services communicated by Agility to Customer via Documentation, which may include: (a) including tags, pixels, script, or code supplied by Agility on Customer's website; (b) installing the SDK or integrating with Customer’s MMP into Customer’s mobile or tablet applications; (c) supplying appropriate Customer Content necessary for Agility to provide the Service; and/or (d) allowing access to data collected by Customer’s MMP.
1.6 Modifications. Agility may make changes to the Services (including discontinuation of all or part of the Services) at any time. Agility will provide notice to Customer of material changes in accordance with this Agreement. If Customer does not wish to continue to use the modified Services, Customer’s sole remedy is to terminate the Agreement by providing written notice to Agility.
1.7 Display of Ads. Customer can request to work with Agility (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to Agility. Customer acknowledges that Agility has limited control where and how often Ads will be displayed within the Network. Ads may be displayed next to ads of Customer’s competitors, or on websites or applications that are undesirable to Customer unless Customer excludes the website in accordance with applicable Documentation. Customer content must comply with Documentation and advertising policy requirements or Agility may be unable to provide the Services with respect to such Customer Content. Agility retains the authority to remove any Customer Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion. Agility reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies or Documentation.
1.8 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the Agility Platform. Customer is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Agility may be required to accept certain third-party terms and conditions as agent on Customer's behalf where necessary for Agility to perform Services requested by Customer (e.g., terms related to running campaigns on Facebook Website Custom Audiences). Agility shall have no responsibility or liability in relation to such additional terms.
1.9 Advertising Policy Guidelines. Customer will adhere to the advertising guidelines as set out by Agility, Applicable Law, or applicable Documentation. Customer is responsible for ensuring that Customer Content and Customer websites are compliant with these policies. Agility reserves the right to review campaigns and Ads at any given time. Our Network’s policies and self-regulatory bodies’ codes of conduct are constantly being reviewed and updated, and as such, active or approved campaigns may be reviewed to ensure that they comply with current policies, codes, and legal requirements.
1.10 Promotions. Agility may offer promotions to Customer, subject to any terms set out in the applicable Documentation or, if applicable, Insertion Order. If Customer accepts the promotion, Customer understands and agrees that after the promotion, the campaign will automatically continue as a paid campaign, unless Customer pauses or completes the campaign as described in the applicable Documentation. The Customer is responsible for all campaign costs that occur beyond the parameters of the promotion described in the applicable Documentation.
2. Account and Campaign Management
2.1 Account Setup. Account will be setup by Agility free of charge. Credentials to applicable Services will be provided to Customer including login credentials.
2.2 Account Management. Account Services will be managed by Agility on behalf of Customer. The management of the receipt of Services, specifically setting campaign budgets and other details, and the review and optimization of performance. Campaign modifications made using Customer’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign will be managed on Customer’s behalf by Agility to achieve Customer’s stated goals. Charges incurred because of changes made using Customer’s Account will be included in Customer's regular bill or invoice. Agility will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Customer.
2.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by Agility, service fees will be based on Agility's measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the fees payable by Customer. The Customer may access these measurements through the Platform.
2.4 Campaign Optimization. Agility will optimize towards Customer's performance goals by programmatically using Customer Content to create new content (such as Ads, emails, or other necessary marketing materials). Agility may then insert this new content into Customer's active campaigns, or create, change, or pause campaigns on Customer's behalf, subject to Customer's budget.
3. Payment Terms
3.1 Payment Methods. Customer agrees to keep valid payment method information (e.g. ACH, credit card, or equivalent account information) on file with Agility. Customer agrees to provide a valid credit card for secondary payment for the fulfillment of Customer's obligation under this Agreement should the terms of payment lapse without payment and Customer does not cure a lapse within the specified term of this agreement. The Customer authorizes Agility to charge the cost of incurred Services using the valid payment details provided by Customer in accordance with the Summary of Work, Statement of Work, Service Agreement or Master Service Agreement, including any prepaid, retainer or additional Services costs incurred. The Customer understands that all funds transferred to Agility become the property of Agility upon transfer to compensate Agility for costs involved in delivering the Services, including creating, maintaining and providing access to the Documentation, Network, Platform, Technology, and Performance Data. If Customer suspends a campaign or cancels Customer’s Account, Customer may request reimbursement in the amount of the prepaid funds not attributed to any completed campaign(s) within one hundred eighty (180) days after the campaign is paused or this Agreement is terminated, provided that any such reimbursement is at Agility’s sole discretion.
3.2 Non-Payment. Agility reserves the right to suspend Customer's campaigns due to failed payments or insufficient balance. Further, if Customer develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or Agility otherwise designates Customer as a credit risk, Agility reserves the right to require prepayment.
3.3 Currency and Taxes. All payments to Agility will be made in United States Dollars. Payments are quoted exclusive of any taxes. Customer is responsible for all sales taxes, use taxes, value-added taxes, withholding taxes, and any other similar taxes imposed by federal, state, local, or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon Agility’s net income.
3.4 Late Payment. Should the terms of payment described in the Agreement lapse without payment (“Default”) Agility shall have the right to charge a late fee interest of 1.5% per month (19.56% effective annual rate). All payments made in arrears shall be applied to the most seasoned delinquency.
4. Intellectual Property Rights
4.1 Ownership. Agility Materials are the sole and exclusive property of Agility or its third-party licensors, as applicable, and are protected by Applicable Law. Customer’s rights to the Agility Materials are strictly limited to those rights expressly granted in this Agreement and do not include any other licenses. Customer Content is the sole and exclusive property of Customer or its third-party licensors as applicable and is protected by Applicable Law. Agility’s rights to Customer Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
4.2 Restrictions. Customer agrees it will not: (a) modify the Agility Materials or any related proprietary notices; (b) reverse engineer, decompile, disassemble or interfere with any Agility Materials (except where and to the extent such prohibition is not permitted by law); (c) sublicense, rent, sell, or lease access to the Agility Materials, or use the Agility Materials to create any other product, service or dataset; (d) except with respect to Performance Data, log, capture, or otherwise create any record of any data transmitted to or from the Agility Materials; (e) deliver or introduce any harmful or malicious code, files, scripts or agents into the Agility Materials; (f) use the Platform for any illegal purposes or any purpose other than using the Services for its intended purpose, which does not include creating or supplementing end user profiles with targetable interests, end user movement profiles, site-specific retargeting, and product-interest information outside of the Services; and (g) make or publish any representations or warranties on behalf of Agility concerning the Services or Agility Materials without Agility’s prior written approval. When reproducing Agility Materials, Customer will include proprietary rights notices contained on the Agility Materials.
4.3 Export Control Laws. Agility Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Customer must comply with all such regulations and is responsible for obtaining any related licenses.
4.4 Feedback. Feedback provided to Agility may be used to develop and improve the Service, Agility Materials, new products, and services. To the maximum extent permitted by law, Agility owns all rights, titles, and interests to any such Feedback.
5. Data Rights and Restrictions
5.0 Customer Data. Agility may use Customer data to provide the services herein prescribed. Agility will only use Customer Data for the purposes set out in this Agreement and it shall be treated as Customer Confidential Information. Agility may disclose Customer Data to third parties solely as required to provide Services to Customer in accordance with the Agility Data Protection Addendum. For the purposes of this Agreement and to assist with compliance with Applicable Law, Agility is a data processor and Customer is the data controller of the Customer CRM Data and Agility shall process such Customer CRM Data only in accordance with the Agility Data Protection Addendum. Customer represents and warrants that it has obtained any and all authorizations and lawful bases for processing (including verifiable consent where necessary) its Customer CRM Data in accordance with all Applicable Laws in order to provide personal data to Agility for processing.
5.1 Service Data and Performance Data. Agility is the sole owner of the Service Data and the Performance Data (to the extent Performance Data does not include Customer CRM Data) and may use either for any purpose allowed by Applicable Law.
5.2 Confidentiality. During the term hereof and for a period of five (5) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that the Receiving Party can show: has been independently developed by the Receiving Party without use of or access to the Disclosing Party's Confidential Information; has become publicly known through no breach by the Receiving Party; has been rightfully received by the Receiving Party without obligation of confidentiality from a third party authorized to make such disclosure; has been approved for release in writing by the Disclosing Party; was known by the Receiving Party without obligation of confidentiality prior to receipt from the Disclosing Party; or is required to be disclosed by a competent legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure (if legally permissible).
6. Privacy Obligations
6.1 General Obligations With Respect to End User Privacy. Customer is responsible for the operation of all websites and applications owned or operated by Customer when Customer uses the Services. Customer agrees to: (i) comply with all Applicable Laws that relate to data protection and individual privacy and publicity rights; (ii) post a publicly-accessible privacy notice on every Customer website and mobile app that integrates or uses the Services that discloses in a legally sufficient manner how information (including personal data) is collected through the website or app, or both, and used by the Customer and Agility, and further discloses in its privacy notice its practices with regard to cookies, targeting, and online behavioral advertising and (iii) inform end users how they may opt-out from receiving targeted advertisements which may include links to the NAI website opt-out page here: http://www.networkadvertising.org/choices/ or the DAA opt-out page here: http://www.aboutads.info/ or, for end users located in European Territories, the EDAA opt-out page here: http://youronlinechoices.eu/. Customer further agrees that it will only enable Agility to collect personal data through the pixel in a manner that is consistent with Agility’s instructions or Documentation
7.1 By Customer. Customer represents and warrants to Agility that: (a) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (b) the Customer Content and the Customer websites, mobile or tablet applications ("Customer Sites") do not include, and do not give access via hyperlinks to any property containing materials that are obscene, defamatory or contrary to any Applicable Law; (c) Customer Content and Customer Sites comply at all times with the Documentation and Applicable Law in all jurisdictions where Customer Ads and Customer Sites are viewed; (d) Customer Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (e) the Customer Content does not infringe or misappropriate the rights of any third party; (f) the collection, transfer, use and disclosure of Service Data or Customer CRM Data in accordance with this Agreement will not violate the rights of any third party (including any Customer of Customer) or any statements in its own posted privacy notice or similar privacy statement; and (g) Customer will not attempt to identify or re-identify any data Agility provides to Customer as part of its Services which has been presented to Customer in an anonymous, and/or aggregated fashion.
7.2 By Agility. Agility represents that: (a) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (b) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 9.2, Agility’s sole liability and Client’s sole remedy will be re-performance of the Services by Agility or Client’s termination rights under Section 13.1.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Agility EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND MATERIALS MADE AVAILABLE BY Agility UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) Agility EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON- INFRINGEMENT; (B) Agility DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED; AND (C) Agility MAKES NO PROMISE REGARDING THE RESULTS CUSTOMER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
7.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, Agility WILL HAVE NO LIABILITY TO Customer IN CONNECTION WITH (A) CUSTOMER’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS PRIVACY PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW; (B) CUSTOMER’S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF Agility ACTS IN ACCORDANCE WITH CUSTOMER’S INSTRUCTIONS. THE FOREGOING DOES NOT LIMIT Agility’S LIABILITY AS TO ANY END USER WHO IS NOT A CUSTOMER OF AGILITY.
8.1 Websites directed in whole or in part toward children. Customer expressly represents and warrants that: (a) it will not place Agility’s pixel on any website that is directed (in whole or in part) to children under the age of thirteen (13); (b) it will not knowingly permit Agility to collect information from a device or browser in possession of any child under the age of thirteen (13); and (c) it will not knowingly send Agility any information derived from a device or browser in possession of any child under the age of thirteen (13).
9.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless Agility and its officers, directors, employees and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding: (a) Customer’s use of any services subject to this Agreement, including without limitation regarding Customer’s breach of this Agreement; or (b) any violation, infringement, or misappropriation of any law or third party rights (including intellectual property, property, privacy or publicity rights) by Customer, Customer’s own Customers (where Customer is an Agency or authorize Reseller), the Customer Content or Customer CRM Data.
9.2 Agility Indemnification. Agility will defend, indemnify and hold harmless Customer and its officers, directors, employees, and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the Agility Materials. In no event, will Agility have any liability under this Section 9.2 arising from: (a) unauthorized modifications made to the Technology by Customer; (b) the Customer Content; or (c) the combination of the Agility Materials with any third-party software, process, or service not provided by Agility. Agility’s indemnification obligations in this Section 11.2 will be Agility’s sole liability and Customer’s sole remedy for any claims that the Services or Agility Materials violate, infringe, or misappropriate any intellectual property rights.
9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed; and (b) the indemnified party may join in the defense with its own counsel at its own expense.
10. LIMITATIONS ON LIABILITY
10.1 Disclaimer of Damages. Agility WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO Customer FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF Agility IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Agility’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY Customer TO Agility UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO Customer, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10. WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. TERMS AND TERMINATION
11.1 Term and Termination. This Agreement will remain in full force for the Term of the Agreement. The agreement shall then renew automatically on the last day of the month in which the Agreement is set to expire (“Expiration Date”) unless either party provides written notice of non-renewal at least 30 days prior to the Expiration Date. Agility shall have the right to pause any campaign or service for non-payment or breach of any terms of the Agreement. Agility may terminate this agreement for any material breach by Customer of this Agreement that is not cured by the Customer within 5 days of notice of such material breech of contract being provided to Customer. Upon written notice of termination of the Agreement by Agility or Customer, such termination will take effect forty-eight (48) hours from receipt of such termination notice (or at such other designated time, at least forty-eight (48) hours in advance).
11.2 Post-Termination Obligations. Upon termination of this Agreement: (a) Agility will cease providing the Services and permitting access to the Platform to Customer; (b) Customer will, within thirty (30) days, pay to Agility any fees that have accrued prior to the effective date of termination; and (c) Customer will remove the Agility pixel from Customer Sites and Agility will not be liable for any damages (or any benefit to Agility) resulting from Customer’s failure to remove the pixel. Provided Customer is not in breach of the Agreement, subject to Section 3. Payment Terms, Agility may refund Customer for any amounts prepaid for Services that were not performed prior to termination. The following Sections will survive expiration or termination of this Agreement: Sections 1, 1.3, 3 (as applicable), 4, 5, and 7-11, 12 (as applicable), and 13-16.
11.3 Insolvency. Agility may immediately terminate this Agreement and move Customer to prepay pursuant to Section 5 in the event that: (a) Customer (i) fails to satisfy any enforceable, final and material judgment against it; (ii) fails to pay its fees as they become due; or (iii) enters into or is the subject of insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Customer’s debts; or (b) a court appoints, or Customer makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code) for Customer or all or substantially all of its assets. Customer acknowledges that Agility may set off any liability owed to Customer against any liability for which Agility determines Customer is liable to Agility related under this Agreement. In the event that an Agency (but not the Agency’s applicable Customer) enters into or is the subject of insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Customer’s debts, Agility shall have the right to notify Customer directly in effort to settle outstanding liabilities under this Agreement.
12.1 Rights, Title and Interest. Each party retains all right, title, and interest to its own logos and trademarks. Agility logos and names are trademarks of Agility, Inc. All other trademarks and product or Customer names mentioned in the Services or Agility Materials are the property of their respective owners and may not be used without the prior written permission of the owner
Notwithstanding the foregoing, Agility may: (a) use Customer’s logos, name, and any trade names to indicate in its promotional materials that Customer is a Customer of Agility; and (b) disclose the name of the Customer as allowed by Applicable Law.
13.1 Confidential Information. 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) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) 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 this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 15; and (c) maintain the secrecy 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 law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 15 will survive termination of this Agreement 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 this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
14.1 Assignment of Agreement. Customer may assign this Agreement upon written notice to Agility to any acquirer of all or substantially all of its assets or stock, or to a corporate affiliate. Any other attempt to transfer or assign is void. Agility retains the right to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
15. RESOLVING DISPUTES: FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
15.1 Contact Agility first. The parties agree to make good faith efforts to address concerts hereunder without resorting to formal legal proceedings. Before filing a claim, the disputing party agrees to try to resolve the dispute informally by contacting the non-disputing party first via email, telephone or mail. See firstname.lastname@example.org
15.2 Judicial forum for disputes. Customer and Agility agree that any judicial proceeding to courts located in Salt Lake County, UTAH, subject to the mandatory arbitration provisions below. resolve claims relating to this Agreement or the Services will be brought in the federal or state Customer and Agility consent to venue and personal jurisdiction in such courts. Notwithstanding the above, Customer and Agility agree that Customer alternatively may attend any arbitration proceedings telephonically or videographically, in which case Agility will do so as well.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
15.3 Arbitration. Both Parties Agree to discuss the possibility of Arbitration as a settlement option. Customer and Agility agree that any claim resolved through Arbitration to resolve any claims relating to this Agreement shall be final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
- Arbitration Procedures. The American Arbitration Association (“AAA”) (https://www.adr.org) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (https://www.adr.org/sites/default/files/commercial_rules.pdf). The arbitration will be held in the United States in accordance with the venue specified in Section 17.2.
- Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Agility will pay all arbitration fees for Customer on a pre-pay plan. Agility will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Customer's claim is frivolous.
- Exceptions to Agreement to Arbitrate. Either Customer or Agility may assert claims, if they qualify, in small claims court in an appropriate Utah court. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Arbitration will not be binding with regards to the Agility Materials at Agility’s sole discretion. If the agreement to arbitrate is found not to apply to Customer or Customer's claim, Customer agrees to the exclusive jurisdiction of the state and federal courts located in Salt Lake County, UTAH to resolve Customer's claim.
- Opt Out of Agreement to Arbitrate. Where applicable laws require, Customer can decline this agreement to arbitrate by sending an email within thirty (30) days of first accepting this Agreement to email@example.com clearly stating that Customer wishes to opt out of arbitration with Agility and include Customer Name as described in this Agreement, Signatory’s first and last name, and the applicable laws and authority under which the declaration to opt out is made.
15.4 Class Action Waiver. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Agility Materials, or any Services provided by Agility will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
15.5 Controlling Law. This Agreement is governed by the law of the State of UTAH except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.
16.1 Non-Solicitation of Employees of subcontractors. For a period of 24 months from the termination of this Agreement, Customer or its affiliates shall not without the written consent of Agility (i) solicit, employ or retain, or have or cause any other person or entity to solicit, employ, or retain, any person who is employed by or a subcontractor of Agility or was employed by or a subcontractor of Agility during the 6 month period prior to such solicitation, employment, or retainer, (ii) encourage any such person not to devote their full business time to Agility, or (iii) agree to hire or employ such person.
16.2 Non-Solicitation of Clients. Both Customer and Agility agree not to solicit customers of either other party nor will solicitation be made to key business partners, suppliers, et cetera without the written consent of the other party.
17.1 Amendments. Agility reserves the right to revise the Terms of Service and will provide Customer notice in writing of changes to the Terms of Service. Customer’s rights and obligations are at all times subject to the Terms of Service. Customer’s continued use of the Service constitutes acceptance.
17.2 Independent Parties. Agility is an independent contractor and not an agent of Customer in the performance of this Agreement. There are no third-party beneficiaries (except the indemnitees referenced herein).
17.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the use of the Services and will supersede all prior agreements between the parties whether written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
17.4 Force Majeure. Agility will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Agility’s reasonable control.
17.5 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
17.6 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
17.7 Third-Party Website Disclaimer. Links to third-party websites from Agility Services do not imply endorsement by Agility of any products, services or information presented therein, nor does Agility guarantee the accuracy of the information contained on them.
17.8 Order of Precedence. In the event of a conflict or inconsistency that relates to the subject matter hereof between any of the terms of the following documents, the following order of precedence shall control: (a) Insertion Order or Order Form; (b) Product Addendum; (c) Statement of Work, (d) Service Agreement or Master Service Agreement, (e) this Agreement. This Agreement and all terms herein are incorporated by reference into any Insertion Order Form, or Product Addendum except as explicitly set forth to the contrary in such document.
17.9 Notice. All notices to Agility must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by Agility. Legal notices to Agility must be sent to legal@Agilityads.com with a copy to Agility, Attn: Legal, 10421 SOUTH JORDAN GATEWAY, Ste 550, South Jordan Utah 84095 U.S.A. Notices to Client will be sent to the Client Account email address on file and/or posted on the Platform dashboard and are deemed effective when sent or posted.
18. Agency Customers
18.1 Authority, Liability, and Direct Relationship. Where Customer is an Agency or Authorized Reseller entering into Services on behalf of its own customer(s): (a) Customer represents that it has the authority to act on behalf of such customers with respect to all obligations and representations set forth in this Agreement; (b) upon request, Customer will provide AGILITY with written confirmation and (if requested) documentation of the relationship between Customer and its customers; (c) upon AGILITY’s request, Customer will provide AGILITY with written confirmation that its customer has provided it with funds sufficient to make payments pursuant to the Agreement; (d) Customer accepts responsibility for the actions of its customers’ Accounts and liability for all expenses incurred through the provision of Services to its customers, and assumes responsibility for ensuring compliance with and breach of this Agreement by its customers; (e) Customer will ensure the performance of its customers’ obligations under this Agreement, including but not limited to any and all obligations set out in Section 8; and whereby Customer and will have joint and several liability with respect of its customers’ breach of any of the obligations, representations or warranties under this Agreement; (f) Customer’s customer may request at any time that their Account be migrated to another agency or to a direct Account with AGILITY and nothing in this Agreement will prevent AGILITY and such customers from entering into a direct relationship; and (g) AGILITY reserves the right to object to any customer at AGILITY’s sole discretion.
18.2 Support and Marketing. Where Customer is an Agency or Authorized Reseller: (a) AGILITY will provide commercially reasonable support during AGILITY’s normal business hours, but Customer acknowledges that they will be solely responsible for providing support to their customers in connection with such customers’ use of the Services; (b) Customer is solely responsible for marketing efforts related to the “go to market” life cycle for Services, provided that any marketing materials prepared and/or used by Customer are in compliance with AGILITY marketing requirements and other Documentation; and (c) AGILITY reserves the right to request changes or removal of any Customer materials used to market the Services.