Acceptance of Terms
These Agility Online Terms and Conditions together with any applicable Insertion Order(s) (collectively, the “Agreement”) describe the terms and conditions under which you (“Customer”) may receive and access the Services (defined below) of Agility Digital, Inc. (“Agility”).
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY
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. BINDING ARBITRATION. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN CUSTOMER AND AGILITY THAT IN ANY WAY RELATE TO THIS AGREEMENT OR CUSTOMER’S USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION. ACCORDINGLY, CUSTOMER AGREES TO GIVE UP ITS RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) TO ASSERT OR DEFEND ITS RIGHTS UNDER THESE TERMS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). CUSTOMER’S RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND CUSTOMER CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION.
Definitions
1.1 “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.
1.2 “Agility Materials” means the Platform, Agility API, Agility Technology, Documentation, the Services (including all visual interfaces, graphics, designs, templates, compilations, computer code, and other elements included as party of the of the Services), Service Data, Performance Data, and all modifications and derivative works of the foregoing.
1.3 “Agility 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.
1.4 “Applicable Law” means any applicable federal, state 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.
1.5 “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.
1.6 “CRM Data” means any customer-related information provided by or obtained from Customer in connection with the Services, originating from data stored in Customer’s Customer Relationship Management (CRM) system. CRM Data may be uploaded, accessed via an API or authorization framework, transmitted, or entered into the Platform.
1.7 “Customer Content” refers to any data, information, media, graphics, images, text, and other materials that Customer provides, uploads, submits, or otherwise makes 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.
1.8 “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.
1.9 “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Agility Technology that are provided to Customer (whether by email, electronic service, screen or click-through display, or in-person).
1.10 “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.
1.11 “Insertion Order” means a written order entered into between Customer and Agility under this Agreement setting forth the applicable campaign details and other Service-specific terms and conditions and referencing this Agreement.
1.12 “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that Agility has partnered with to provide the Services.
1.13 “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).
1.14 “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.
1.15 “Service Data” means any data (and each component of such data, or derivative of such data) that is collected by Agility by any means, whether 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 may 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.
1.16 “Services” means any Agility offering that Customer agrees to receive, subject to this Agreement, any 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.
Agility Services
2.1 Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Agility will provide to Customer the Services agreed in one or more Insertion Orders or otherwise ordered by the Customer through the Platform. The parties may agree to update the Services (once ordered) from time-to-time through mutual written agreement (a “Change Order”). The Parties will include in each Change Order any updates to the fees that will occur based on the changes to the Services.
2.2 Agility Grant of Rights and Licenses; Restrictions. Subject to execution of an Insertion Order, payment of all applicable fees, and compliance with this Agreement, Agility grants Customer the following rights and licenses:
Platform Access Rights. Agility grants Customer a non-exclusive, worldwide, non-transferable, revocable (in accordance with Section 11), and sublicensable right to use and access the Platform for Customer’s own internal business purposes solely in connection with the receipt of Services. All use of the Platform must comply with the applicable Documentation.
Agility Pixels, APIs, and other Agility Technology. Agility grants Customer a non-exclusive, non-transferable, revocable (in accordance with Section 11), and non-sublicensable right and license to: (i) to integrate into Customer’s website any pixel or other script/code made available to Agility as part of the Services; (ii) access, use, and integrate with any Agility-provided application programming interfaces made available by Agility as part of the Services; and (iii) for mobile related Services, to integrate such Agility Technology as necessary for Agility to integrate with Customer’s MMP with end-users across mobile app/browser channels
Documentation. Agility grants Customer a non-exclusive, non-transferable, revocable (in accordance with Section 11), and non-sublicensable right and license to use, copy and reproduce Documentation as reasonably necessary to support Customer’s use of the Services and Platform.
License to Performance Data. Agility grants Customer a non-exclusive, royalty-free, fully paid, non-transferable, worldwide right and license during the Term and for one (1) year thereafter to use, disclose, modify, and adapt any Performance Data provided through the Services. For the avoidance of doubt, the foregoing license grant does not include any right to underlying Agility Technology used to generate the Performance Data. Agility agrees that it will only distribute Performance Data on an aggregate, de-identified basis and will not sell, distribute, lease, license or otherwise disclose Performance Data in any manner that identifies Customer.
License to Service Data. If Agility shares any Service Data with Customer, Agility grants Customer during the term of this Agreement a non-exclusive, worldwide, royalty-free, revocable, non-sub-licensable and non-transferable license to use the Service Data for the sole purpose of receiving the Services.
Restrictions. Customer agrees it will not: (i) modify the Agility Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any Agility Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the Agility Materials, or use the Agility Materials to create any other product, service or dataset; (iv) except with respect to Performance Data, log, capture, or otherwise create any record of any data transmitted to or from the Agility Materials; (v) deliver or introduce any harmful or malicious code, files, scripts or agents into the Agility Materials; (vi) 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 (vii) 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.
Restrictions. Customer agrees it will not: (i) modify the Agility Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any Agility Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the Agility Materials, or use the Agility Materials to create any other product, service or dataset; (iv) except with respect to Performance Data, log, capture, or otherwise create any record of any data transmitted to or from the Agility Materials; (v) deliver or introduce any harmful or malicious code, files, scripts or agents into the Agility Materials; (vi) 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 (vii) 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.
2.3 Customer License Grants; Cross-Device Services
License to Customer Content. Customer grants Agility a non-exclusive, worldwide, royalty-free, non-sublicensable, and non-transferable (except as permitted under Section 13) license to use any Customer Content and/or Brand Assets provided by Customer in connection with the Services solely for the purpose of providing and supporting the Services that Customer agrees to provide Agility Brand Assets as reasonably requested by Agility to facilitate Customer’s Ad requests.
License to Customer Data and CRM Data. Customer grants Agility a non-exclusive, worldwide, royalty-free license to use any CRM Data and Customer Data that Customer provides or otherwise makes available to Agility in connection with the Services in order for Agility to perform the Services and as otherwise permitted under this Agreement.
Analytics Data and Cross-Device Services. To the maximum extent permitted by Applicable Law, Agility may generate aggregate and deidentified data and insights from its use and processing of Customer Content and CRM Data (“Analytics Data”) and use this Analytics Data for any business purpose, including, without limitation, the improvement of Agility’s products and services and the development of new products and services. Any use of Analytics Data will not be identifiable to Customer or any individual person. Analytics Data may include hashed email addresses and other anonymous user identifiers (“AUIDS”) will be stored as a persistent part of Agility’s cross-device graph. Agility may combine AUIDS with other data, hashed emails, or other similar identifiers of other participating clients in order to recognize users across devices in order to enhance the Services. Agility will make all necessary disclosures of the data collection and use practices described in this Section 2.3(c) practices in their privacy notice, as required by Applicable Law.
PERFORMANCE TERMS; CUSTOMER RESPONSIBILITIES
3.1 Technical Requirements. Customer will comply with all technical requirements for use of the Services included in the Documentation, including in relation to: (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 Services; and/or (d) allowing access to data collected by or through Customer’s MMP.
3.2 Advertising Policy Guidelines. Customer will adhere to all applicable advertising guidelines applicable to the Services, including, without limitation, those guidelines specifically identified in an Insertion Order and those maintained by the platforms where Ads will be placed (“Advertising Guidelines”). Customer is responsible for ensuring that any Customer Content, Brand Assets, and Customer websites are compliant with these Advertising Guidelines. Agility reserves the right to review campaigns and Ads at any given time for compliance with Advertising Guidelines. Agility may be unable to provide the Services with respect to Customer Content that does not conform to applicable Advertising Guides. Agility retains the authority to remove any Customer Content that it deems to be in violation of this Agreement or applicable Advertising Guidelines, in its sole discretion, and will notify Customer as soon as reasonably possible if such an action become necessary. Agility reserves the right to pause or terminate campaigns eligible that are no longer eligible to run in accordance with applicable Advertising Guidelines.
3.3 Websites directed in whole or in part toward children. Customer agrees 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).
3.4 Modifications. Agility may make changes to the Services from time-to-time, provided that any change will not materially decrease the functionality of the Services without giving Customer 30 days’ written notice of the change and the opportunity (as Customer’s sole remedy) to terminate this Agreement by providing written notice to Agility during this 30-day period.
3.5 Display of Ads; Networks. Customer can request to work with Agility (including within the Platform where such functionality is available) to manage display preferences when and if these controls are made available. 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 instructions provided by Agility to Customer upon request.
3.6 Third-Party Terms. Customer acknowledges and agrees that some aspects of the Services may require the creation of a user account by Customer with a third-party provider and, in such event, such third-party will be identified by Agility in advance to Customer. Customer is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply.
3.7 Beta Versions. From time to time, Agility may make available for Customer certain functionality related to the Service on a “beta”, trial, evaluation, or similar basis (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 8 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SECTION 9.2 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO BETA VERSIONS OR TRIALS OF THE SERVICE.
ACCOUNT AND CAMPAIGN MANAGEMENT
4.1 Account Credentials. Credentials to applicable Services will be provided to Customer including login credentials. Customer is solely responsible for securing and keeping confidential any login credentials for the Services.
4.2 Account Management. Customer’s account with Agility will be managed by Agility on behalf of Customer, including for purposes of managing the receipt of Services, specifically setting campaign budgets and other details, and the review and optimization of performance. Campaign modifications made using Customer’s Agility 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.
4.3 Campaign Measurement and Tracking. Unless otherwise 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.
4.4 Campaign Optimization. Agility is permitted to resize, re-format, rearrange, adapt, or modify Customer Content as reasonably necessary to fit the restraints of the media or channel in which it appears and optimize programmatic distribution of Customer Content to achieve Customer’s performance goals.
PAYMENT TERMS
5.1 Invoicing and Payment. Agility will invoice Customer, and Customer will remit payment on Agility’s invoices, in accordance with the terms of the applicable Insertion Order.
5.2 Suspension for Non-Payment; Credit. Agility reserves the right to suspend Customer’s campaigns due to any undisputed payments that are past due greater than seven (7) days. Further, if Customer develops adverse credit conditions or Agility otherwise (in its reasonable discretion) designates Customer as a credit risk, Agility reserves the right to require prepayment.
5.3 Pre-Paid Credits. In connection with the Services, Agility may require, or Customer may elect, to pre-pay certain amounts to be deployed by Agility on or in connection with Ad campaigns (“Pre-Paid Credits”). All Pre-Paid Credits will be kept as a credit balance on Customers account for 12 months from the date of provision to Agility (“Hold Period”). All Pre-Paid Credits are non-refundable except if this Agreement is terminated for Agility’s breach under Section 11.3 (Termination for Material Breach). IF CUSTOMER DOES NOT DEPLOY PRE-PAID CREDITS BY THE END OF THE HOLD PERIOD, CUSTOMER IRREVOCABLY FORFEITS AND RELEASES THOSE PRE-PAID CREDITS AND THEY WILL BE REMOVED FROM CUSTOMER’S ACCOUNT WITHOUT REFUND.
5.4 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.
5.5 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. All payments made in arrears shall be applied to the most seasoned delinquency.
INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership by Agility. As between Agility and Customer, Agility owns and will retain ownership of all right, title, and interest, including intellectual property rights, in and to the Agility Materials. Customer’s rights to the Agility Materials are strictly limited to those rights expressly granted in this Agreement.
6.2 Ownership by Customer. As between Agility and Customer, Customer owns and will retain ownership of all right, title, and interest, including intellectual property rights, in and to the Customer Content, Customer Data, and CRM Data. Agility’s rights to Customer Content, Customer Data, and CRM Data are limited to those rights expressly granted in this Agreement.
6.3 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, and Customer hereby assigns to Agility, all right, title, and interest in and to any such Feedback.
CONFIDENTIALITY
7.1 Confidential Information. “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, in writing, orally, or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, and equipment), that is designated by the Disclosing Party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties. “Confidential Information” may also include information disclosed to the Disclosing Party by third-parties.
7.2 Exclusions. The confidentiality and non-use obligations under this Section 7 will not apply to any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party, without restriction, at the time of disclosure by the Disclosing Party; (d) is obtained by the Receiving Party from a third-party without a breach of the third-party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.3 Non-Use and Non-Disclosure. Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose except to exercise its rights and perform its obligations under this Agreement. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to third-parties or to Receiving Party’s employees, except to those employees of the Receiving Party with a need to know. Receiving Party will not reverse engineer, disassemble, or decompile any prototype, software or other tangible objects which embody the Disclosing Party’s Confidential Information. Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protection the information from public disclosure.
7.4 Maintenance of Confidentiality. Receiving Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own similar Confidential Information (but in no event less than a reasonable degree of care) and will ensure that its employees who have access to Confidential Information of Disclosing Party have signed a non-use and non-disclosure agreement in content similar to the provisions of this Section 7 prior to any disclosure of Disclosing Party’s Confidential Information to those employees.
7.5 Return of Materials. Upon the termination of this Agreement, Receiving Party will deliver to the Disclosing Party or, at the Disclosing Party’s election, destroy all of the Disclosing Party’s Confidential Information that it may have in its possession or control.
7.6 Customer Data Security. Agility will deploy and maintain commercially reasonable technical, administrative, and physical measures designed to protect Customer Data in its possession or control from any unauthorized access or disclosure. Agility will ensure that any subcontractor’s used in the provision of the Services are bound by written agreements with terms at least as protective of Customer Data as those under this Agreement.
7.7 Remedies. Each party acknowledges and agrees that any violation or threatened violation of this Section 7 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies without first having to go through arbitration as set forth in Section 14.
WARRANTIES
8.1 Customer Warranties. 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 will comply at all times with 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.
8.2 Agility Warranties. Agility represents and warrants to Customer during the term of this Agreement that the Platform will perform substantially in accordance with the Documentation. For any breach of this Section 8.2, Agility’s sole liability and Customer’s sole remedy will be re-performance of the Services by Agility or Customer’s termination rights under Section 11.1.
8.3 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, AGILITY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND AGILITY MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW, AGILITY EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION TO ANY OF THE FOREGOING, AGILITY DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR FREE, SECURE OR UNINTERRUPTED, AND AGILITY MAKES NO PROMISE REGARDING THE RESULTS SUBSCRIBER WILL OBTAIN THROUGH THE USE OF THE SERVICES.
INDEMNIFICATION
9.1 Customer Indemnification. Customer will defend, indemnify, and hold harmless Agility, its subsidiaries, and each of their officers, directors, employees, and agents 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 breach of this Agreement; or (b) any violation, infringement, or misappropriation of any third-party rights (including intellectual property, property, privacy or publicity rights) by Customer, Customer’s own customers (where Customer is an agency or authorized reseller), the Customer Content, the Customer Data, or Customer CRM Data.
9.2 Agility Indemnification. Agility will defend, indemnify and hold harmless Customer, its subsidiaries, and each of their officers, directors, employees, and agents 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 U.S. copyright, trade secret, 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 Agility Materials by Customer; (b) the Customer Content or Customer Data; or (c) the combination of the Agility Materials with any third-party software, process, or service not provided by Agility.
9.3 Remedies. In the event of any claim under Section 9.2, as Agility’s sole liability, and Customer’s sole remedy, Agility will (at its sole discretion) either: (a) obtain a license so as to make the Agility Materials non-infringing; (b) modify the Agility Materials to make them non-infringing; or (c) if options (a) and (b) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused fees.
9.4 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 of any claim, 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; and (b) the indemnified party may join in the defense with its own counsel at its own expense.
LIMITATIONS ON LIABILITY
10.1 DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL AGILITY HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD-PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, OR INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
10.2 MONETARY CAP ON DIRECT DAMAGES. IN NO EVENT WILL AGILITY’S AGGREGATE LIABILITY TO CUSTOMER OR TO ANY THIRD-PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS) EXCEED IN AGGREGATE THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO AGILITY PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THIS AGREEMENT.
10.3 INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY AGILITY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT AND WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.
TERM AND TERMINATION
11.1 Term and Termination. This Agreement is effective as of the Effective Date and will remain in full force until terminated in accordance with the terms of this Section 11.
11.2 Termination for Convenience; No Insertion Orders. Agility may terminate this Agreement and any or all active Insertion Orders upon thirty (30) days’ prior written notice to Customer. If there are no active Insertion Orders, this Agreement will automatically terminate.
11.3 Termination for Material Breach. Either party may terminate this Agreement if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after written notice of that breach; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, creditors’ arrangement, or comparable proceeding that is not dismissed within 30 days.
11.4 Suspension. Agility reserves the right, in its sole discretion, to immediately suspend Customer’s use of and access to the Platform and/or Services if Agility believes Customer’s use of the Platform and/or Services threatens the integrity or security of the Platform or interferes with any other user’s use of the Platform. Agility will promptly restore Customer’s access to the Platform once the condition giving rise to the suspension has been remedied or has otherwise abated. If the condition giving rise to the suspension lasts more than 30 days, Agility may immediately terminate this Agreement.
11.5 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 5 Payment Terms, Agility shall refund Customer for any amounts prepaid for Services that were not performed prior to termination. For the avoidance of doubt, any Pre-Paid Credits will not be refunded if they have been forfeited under Section 5 (Payment Terms).
11.6 Survival. The following Sections will survive expiration or termination of this Agreement: Sections 1, 6, 7, 8.3, 9, 10, 11.5, 11.6, 13, 14, 15, and 16.
ASSIGNMENT
This Agreement may not be assigned by either party without the prior written consent of the other party, except that either party may assign this Agreement to a successor in connection with a merger, acquisition, change of control, or sale of all or substantially all of that party’s assets or equity. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.
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.
14.1 Contact Agility first. The parties agree to make good faith efforts to address concerns 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 support@agilityads.com.
14.2 Judicial forum for disputes. Customer and Agility agree that all matters arising out of or relating to this Agreement including any judicial proceeding will be governed by the laws of the State of Utah, without regard to its conflict of law provisions. Agility and Customer hereby agree to resolve claims relating to this Agreement or the Services in the federal or state courts located in New Castle County, Delaware, where 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.
14.3 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.
14.4 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 14.2.
14.5 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.
14.6 Exceptions to Agreement to Arbitrate. Either Customer or Agility may assert claims, if they qualify, in small claims court in an appropriate Delaware court. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, breach of Section 7 (Confidentiality), 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. 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.
14.7 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 legal@agilityads.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.
14.8 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.
14.9 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.
Solicitation
For a period of 24 months from the termination of this Agreement, Customer or its affiliates shall not without the written consent of Agility (a) 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, (b) encourage any such person not to devote their full business time to Agility, or (c) agree to hire or employ such person. If Customer breaches this Section 15, Customer will pay to Agility, as liquidated damages and not as a penalty, an amount equal to twelve (12) months of the employee’s or subcontractor’s annualized compensation calculated based on the date of such breach. Both Agility and Customer agree that the foregoing liquidated damages in this Section 15 are a reasonable estimation of damages and not a penalty. Any hiring which results from general advertising in the mass media (including without limitation Customer general website or other online job listing locations) shall not constitute a violation of this section.
Agency Customers
The terms of this Section 16 apply only where Customer and Agility have separately agreed in writing that Customer will act as an agency or authorized reseller (“Authorized Reseller” or “Agency”) on behalf of its own customers:
16.1 Authority, Liability, and Direct Relationship. Where Customer is an Agency or Authorized Reseller: (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 8.1 and Customer will have joint and several liability with respect to any 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.
16.2 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.
Modification of Agreement
Agility may, from time to time, modify this Agreement. Revisions will be effective immediately except that material revisions will be effective thirty (30) days after notice to Customer (which may be provided by e-mail) of the revised Agreement. Agility may require that Customer agrees to the revised Agreement in order to keep using the Services. Except as expressly permitted in this Section 17, this Agreement may be amended only by a written agreement signed by authorized representatives of the Parties.
MISCELLANEOUS
18.1 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).
18.2 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.
18.3 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.
18.4 Force Majeure. Performance of either party (except for Customer’s inability to pay applicable fees) will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
18.5 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.
18.6 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.
18.7 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) this Agreement; and any (b) any Insertion Order. This Agreement and all terms herein are incorporated by reference into any Insertion Order except as explicitly set forth to the contrary in such Insertion Order. The parties agree that any purchase order terms, online terms and conditions, or other similar terms added or referenced by Customer on any confirmatory or ordering document or commination are specifically disclaimed and will be superseded by this Agreement and the relevant Insertion Order.
18.8 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 in accordance with this Section 18.8. Legal notices to Agility must be sent to legal@Agilityads.com with a copy to Agility, Attn: Legal, 1557 West Innovation Way Ste 500, Lehi, UT 84043. Notices to Client will be sent to the Customer address in the Insertion Order or otherwise on file with Agility.
