Adplorer AG Terms of Service
May 1, 2022
BY ACCEPTING THIS AGREEMENT OR SIGNING THE ADPLORER PLATFORM LICENSING & SERVICE ORDER FORM (PLSOF) OR ORDERING AN ADPLORER SERVICE VIA THE ADPLORER WEBSITE OR ACCESSING OR USING ANY ADPLORER SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Modifications to this Agreement: From time to time, Adplorer may modify this Agreement. Unless otherwise specified by Adplorer, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Platform Licensing & Service Order Form after the updated version of this Agreement goes into effect. Adplorer will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration or order process or (b) the effective date of the first Platform Licensing & Service Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
These Terms of Service (the “Agreement”) is entered into by and between Adplorer AG, a Luxemburg AG (“Adplorer” or “Provider”) and the person or entity placing an order for or accessing the Service (“Customer” or “you”). In consideration of the terms and conditions set forth below, the parties agree as follows:1.
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Adplorer Technology” means, (i) the Services, Software, Mobile Apps, Documentation, Adplorer’ APIs, Adplorer’ website(s) and any content published on the Adplorer’ websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) Adplorer’ Confidential Information and (iv) any modifications or derivative works of the foregoing.
“Affiliate” or “Subsidiary” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include 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 through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means, all electronic data, text, images, campaign and reporting data, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 7 (Confidentiality) or the DPA, where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).
“Documentation” means, the then-current, generally available user documentation provided by Adplorer detailing the functionalities of the Software and the Services.
“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.
“Module” means, the pricing plans and other packaged offering limitations for and the applicable Services and Software functionalities for which Customer subscribes with respect to any User.
“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
“Platform Licensing & Service Order Form or PLSOF” means, (i) any service order referencing this Agreement and executed by Customer and Adplorer, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail, the Services subscribed to and corresponding Modules, the number of Users authorized to use the Services, Fees payable to Adplorer, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.
“Service Plan” means, the sum of all Modules, Services or Software licensed or booked by the Customer for a defined period.
“Services” means, the Adplorer software-based service offerings identified on the PLSOF as well as Services booked via the Adplorer Website and any Updates, including any Software, API or Documentation made available by Adplorer with such offering, but excludes any applications or APIs separately provided by third parties.
“Software” means the generally available software provided by Adplorer in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
“Subscription Term” means, the period stated on a PLSOF during which Customer subscribes to the Services.
“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by Adplorer to all subscribing customers, but excludes separately priced new products or modules.
“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.
2. Provision of Service
a. Services and Software: Adplorer will make the Services and Software available to Customer pursuant to this Agreement, the applicable PLSOF, and the Documentation, and provide such Services and Software in accordance with this Agreement, including the Data Processing Addendum (“DPA”) and laws and government regulations applicable to Adplorer’ business, during each Subscription Term. During the Subscription Term, Adplorer grants to Customer a limited, non-exclusive right to access and use the Modules of the Services and Software noted in the PLSOF.
b. Beta Services: Provider may offer certain services on Our Website(s) as closed or open beta services (“Beta Services”) during the testing and evaluation period. Customer agrees that Provider has the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. Customer will be under no obligation to acquire a subscription for a Subscription Charge to use any Service(s) as a result of Customer’s subscription to any Beta Service. Provider reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to a Customer. Provider also reserves the right to make the Beta Services available for a Subscription Charge.
c. Phone call tracking service: If Customer has subscribed to and uses the phone call tracking service as part of Adplorer, Customer agrees that:
- when enabling the phone call tracking service, Customer is consenting, on behalf of Customer and its Users and End-Users to the Processing of Customer Data (as generated by or necessary for the provision or operation of the phone call tracking service) by a third-party service provider to provide the phone service;
- Customer must chose in writing to turn on the recording feature, so that all calls made using the phone call tracking service are recorded. Customer is responsible for obtaining consent from its Users and End-Users for any voice recordings made using the phone service; and
- upon Customer’s access to the Service(s) being suspended or terminated, the phone numbers shall also be disabled.
3. Responsibilities of Customer
3.1 Customer Account. Customer may need to register for an Account in order to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that Adplorer may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to this Agreement. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify Adplorer promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. Adplorer and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
3.2 Use Restrictions. Customer agrees not to use the Adplorer Technology (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users; (ii) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws; (iii) use the Service or Adplorer Technology in violation of applicable law (iv) store or transmit any content that infringes upon any third party’s intellectual property rights; (v) interfere with or disrupt the integrity or performance of the Services and their components; (vi) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (vii) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (viii) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.
In addition, Customer will not: (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Adplorer Technology available to any third party other than Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (x) modify, adapt, or hack the Adplorer Technology or otherwise gain or attempt to gain unauthorized access to the Adplorer Technology, its related systems or networks; (xi) falsely imply any sponsorship or association with Adplorer; (xii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of Adplorer Technology.
4. Customer Data
4.1 Use of Customer Data. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Adplorer Technology. Subject to the terms of this Agreement, Customer hereby grants to Adplorer and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Adplorer under this Agreement. Customer agrees not to upload credit cardholder data to the Service, Software or Mobile App unless Customer’s PLSOF expressly states that Customer is purchasing the PCI-compliant version of such offerings.
4.2 Data Retention: Customer acknowledges and agrees that the Customer Data and usages logs will be retained (i) for a period of 14 days from termination of Customer’s Account (ii) e-mails forming part of Customer Data are automatically archived for a period of 3 months; and (iii) logs are archived for a period of thirty (30) days in the log management systems.
4.3 Data Export: Customer acknowledges that Customer Data once deleted cannot be recovered. Customer may contact firstname.lastname@example.org within the Data Retention Period to export Customer’s Customer Data. Adplorer may charge Customer for the necessary work time for such export at reasonable market rates.
4.4 Deletion of User/Account: Provider reserves the right to delete Customer’s Account and all Customer Data of Customer’s Account upon the expiry of the Data Retention Period.
4.5 Data Deletion: If Customer wishes to permanently delete its Customer Data before the Data Retention period, Customer may contact email@example.com.
If Customer becomes aware of any prohibited activities herein, Customer shall immediately: (a) notify Us of any such actual or threatened activity and disclose all relevant information to Provider; (b) take all reasonable and lawful measures within Customer’s reasonable controls that are necessary to stop the activity and (c) fully cooperate with Provider to mitigate its effects.
4.6 Data Security. The parties will comply with the terms of the Data Processing Addendum(“DPA”) located here, which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. Adplorer will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. Adplorer measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that Adplorer and its Affiliates will process Customer Data in accordance with applicable data protection laws and in accordance with this Agreement, including the DPA.
5. Intellectual Property
5.1 Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and Adplorer obtains no rights in the foregoing except for the express rights granted in this Agreement.
Adplorer and its licensors retain all right, title, and interest in and to Adplorer Technology. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services and Software, except (if applicable) for any downloadable Software, in object code format. Adplorer may freely use and incorporate into Adplorer’s services and software any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to Adplorer products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by Adplorer in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
5.2 Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or about Customer’s use of the Services, Software, Adplorer’s websites, Adplorer’s APIs (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, Adplorer may collect and use Usage Data to develop, improve, support, and operate its products and services. Adplorer may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 7 (Confidentiality) of this Agreement. Adplorer may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified.
5.3 Updates. Adplorer may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Adplorer with respect to future functionality or features.
6. Fees and Payment
6.1 Fees and Payment. All charges associated with Customer’s Account (“Fees”) are set forth in the applicable PLSOF or Website, and are due and payable in full within thirty (30) days from the invoice date or as stated in the applicable SOF. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable PLSOF or Website. Unless otherwise set forth in the SOF, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. During the Term, the Customer may not reduce their Service Plan.
6.2 Returned & Late Payments. Returned payments including but not limited to returned checks, ACH, eCheck, and credit card chargebacks incur returned payment fees of up to $25.00 per returned payment.
If any payment obligation by Client under this Agreement is not paid when due, then, following written notification from Adplorer, Adplorer may suspend Customer’s access to the Adplorer Technology, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full. Any undisputed payment outstanding thirty (30) days or more beyond the terms stated in an invoice is considered delinquent. Any sums which are not paid within 30 days of the due date shall accrue interest at a rate of 1.5% per month. Client agrees to pay all Adplorer costs and expenses associated with collections efforts, including reasonable attorney fees, whether or not an arbitration or lawsuit is commenced as part of the collections process.
6.3 Payment Disputes. Adplorer will not exercise its rights under Section 6.2 (Returned & Late Payments), 7.4 (Termination for Cause) or Section 7.3 (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
6.4 Credit Card & Direct Debit Payments. Client authorizes Adplorer to charge his or her credit card, debit card, or financial institution account (via an automated clearing house (“SEPA”) transaction), for all amounts owed to Adplorer with respect to Services and Disbursements Client ordered from Adplorer. With respect to each ACH transaction Client authorizes, Client agrees to be bound by the SEPA Rules, as may be amended from time to time.
When Client provides a Payment Method to Adplorer, Client confirms that he/she is permitted to use that Payment Method. Client also authorizes Adplorer to collect and store the related payment card or financial institution account number(s) or other information, along with other related transaction information (collectively, “Payment Information”). The Adplorer account manager may be able to change or update the Payment Information at a later time and in a manner that Adplorer requires in its sole discretion. When Client makes a purchase, Client authorizes Adplorer to charge the full amount of the transaction.
This Authorization will remain in full force and effect until Client notifies Adplorer by electronic message to firstname.lastname@example.org that Client wishes to revoke this Authorization. Adplorer requires at least 10 business days’ prior written notice in order to revoke (cancel) this Authorization. Revocation will not affect Adplorer’s right to initiate credits to Client’s account in order to correct or adjust any debits that were processed before Client’s revocation became effective.
If a credit card or SEPA payment is returned from Client’s Account for insufficient or uncollected funds or for erroneous information, Adplorer may reinitiate the returned debit to Client’s Account within one to five days after the initiation of the first debit. Client agrees to pay Adplorer a returned payment fee of $25 that may be charged by Adplorer, for each returned debit from Client’s Account.
If Client believes an debit initiated by Adplorer occurred in error, there was an error in the amount of a debit, or any other error, Client must file a claim with Adplorer at once by contacting Adplorer at email@example.com, giving Adplorer all information Client has about the alleged error, and taking any other action(s) as reasonably required by Adplorer. Client has sixty (60) days after the date of the posting of the debit in question to file a claim. If Client files a claim with Adplorer after more than sixty (60) days, Adplorer will have no obligation to investigate the claim and Client will have no right to recover any funds Client may have lost as a result of the alleged error. If an error occurs with regard to an credit, Adplorer may take any action permitted by law to recover the funds from Client’s Bank Account.
For each credit card payment a 3.0% convenience fee for processing and collecting in accordance with applicable law is charged. This fee will apply to all Adplorer fees. Customers can choose to pay via SEPA to avoid this fee.
6.5 Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent Adplorer is legally required to collect the same, will be itemized on the Adplorer invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that the Adplorer receives the amount actually quoted and invoiced. If Adplorer has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides Adplorer with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.6 Orders by Affiliates. Customer’s Affiliates may purchase Services directly from Adplorer by acquiring such Services directly via their individual access to the self-service section of the Adplorer online platform. Such purchase will establish a new and separate agreement between the Customer’s Affiliate and Adplorer. If the Affiliate resides in a different country than Customer, then the Services may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
6.7 Purchases from Channel Partners. Customer may procure use of any Services, Software, or Mobile Apps from a third-party authorized reseller of Adplorer, including third-party marketplaces (“Channel Partner”) pursuant to a separate agreement with the Channel Partner. Customer’s use of any Services, Software, or Mobile Apps procured through a Channel Partner will be subject to the terms of this Agreement, and all fees payable (including applicable taxes) for such use will be payable to the Channel Partner pursuant to the terms agreed to between Customer and Channel Partner. Customer understands and agrees that, if Customer purchased the Services or Software subscriptions via a Channel Partner, service credits and refunds payable under this Agreement may be payable or applied by Channel Partner acting on behalf of Adplorer in proportion to the fees paid by Customer to the Channel Partner, and the discharge by the Channel Partner of such obligations will relieve Adplorer of the same under this Agreement.
7. Term, Termination and Suspension
7.1 Term. This Agreement is effective as of the Effective Date (or, for Affiliate orders, the date of purchase in the self-service section of Adplorer) and will continue through the then-current Subscription Term. Modules commence on the start date specified in the relevant PLSOF (or, for Affiliate orders, the date of purchase in the self-service section of Adplorer) and continue for the Subscription Term specified therein.
7.2 Renewal. Unless a party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the relevant Subscription Term, Modules will automatically renew for a period equal to the previous Subscription Term or one year (whichever is shorter). Adplorer reserves the right to increase the Fees at the beginning of each Subscription Term in accordance with inflation.
7.3 Suspension. Adplorer may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Adplorer to prevent or address the introduction of Malicious Software (as defined in Section 8.b below), a security incident, or other harm to Customer, Adplorer, or Adplorer’s other customers. Adplorer will notify Customer of any such suspension. Adplorer will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Adplorer Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
7.4 Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.5 Trial Customers. Upon the expiration of Customer’s trial, Adplorer may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the trial or Customer Data will be permanently deleted. Adplorer will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the trial period.
7.6 Data Export. Upon termination or expiration of this Agreement or any PLSOF for any reason, Customer’s access to the Services, Software, APIs and other Adplorer Technology will terminate. Adplorer strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Customer agrees, following the termination or expiration of this Agreement or an unrenewed Subscription Term, that Customer Data will be retained or deleted in accordance with the Supplemental Terms, as applicable to Customer. Where Customer Data is retained by Adplorer and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact Adplorer within fourteen (14) days following the effective date of termination to have Adplorer export Customer’s Customer Data. Customer Data cannot be recovered once it is deleted. Adplorer may charge Customer for the necessary work time for such export at reasonable market rates.
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer of Warranties
9.1 Service Warranty. Adplorer warrants that the Services or Software will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, Adplorer will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if Adplorer is unable to make such corrections in a timely manner, either party may terminate the applicable PLSOF or Service ordered via the Adplorer Website as the case may be, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services and Software, modifications to the Services and Software by anyone other than Adplorer or its representatives, or third-party hardware, software, or services used in connection with the Services and Software.
9.1 Malware Warranty. Adplorer warrants that the Services hosted by Adplorer will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of Adplorer or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
9.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability
10.1 SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
10.2 EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED OR PAYABLE TO ADPLORER IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
10.3 IN THE CASE OF IP CLAIMS AND DATA CLAIMS, ADPLORER AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
10.4 IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
10.5 THE PARTIES AGREE THAT THIS SECTION 9 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.
11.1 Indemnification by Adplorer. Adplorer will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the Adplorer Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by Adplorer (including reasonable attorneys’ fees) resulting from such IP Claim. Adplorer will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Adplorer Technology by Customer, its Affiliates or Users; (ii) modification of the Adplorer Technology by anyone other than Adplorer or its representatives; or (iii) the combination, operation or use of the Adplorer Technology with other data, hardware or software not provided by Adplorer. If Customer’s use of the Adplorer Technology results (or in Adplorer’ opinion is likely to result) in an IP Claim, Adplorer may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Adplorer, then either Customer or Adplorer may terminate Customer’s subscription to the Service, whereupon Adplorer will refund Customer, on a pro-rated basis, any Fees Customer has previously paid Adplorer for the corresponding unused portion. The sections above state Adplorer’ entire liability and Customer’s exclusive remedy with respect to an IP Claim.
11.2 Indemnification by Customer. Customer will defend Adplorer and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless Adplorer and its Affiliates from and against any damages and costs awarded against Adplorer and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
11.3 Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
12.1 Use of Third Parties for Payment Processing. Adplorer may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Adplorer. Customer must notify Adplorer of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing Adplorer at firstname.lastname@example.org.
12.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all PLSOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
12.3 Entire Agreement. This Agreement, together with any PLSOF or Order via the Adplorer website and the Data Processing Agreement, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Adplorer regarding the subject matter hereof. In the event of a conflict between the Data Processing Agreement or any PLSOF and this Agreement, the order of precedence will be, first, the Data Processing Agreement, second the PLSOF or the Order via the Adplorer website as the case may be, and third, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
12.4 Publicity Rights. Adplorer may identify Customer as an Adplorer customer in its promotional materials. Customer may request that Adplorer stop doing so by submitting an email to email@example.com at any time. Please note that it may take us up to thirty (30) days to process a request.
12.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
12.6 Survival. Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 7 (Confidentiality), 8.c (Warranty Disclaimer), 9 (Limitation of Liability), 10 (Indemnification), 11.c (Entire Agreement), 11.f (Survival), 11.g. (Notices), 11.j (Governing Law) and 11.k (Dispute Resolution) and 12 (Definitions) will survive any termination of termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
12.7 Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or mail to the mailing address provided on the PLSOF; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to Adplorer is: Adplorer AG, 4 Place am Boltgen, L-4044 Esch-sur-Alzette, Luxemburg with a copy to firstname.lastname@example.org by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
12.8 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Adplorer at email@example.com.
12.9 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to, acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all Services ordered via the Adplorer website on written notice to the non-performing party. If Adplorer is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then Adplorer will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
12.10 Governing Law. This Agreement is governed by the laws of Germany without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the Cologne Germany for any claims or dispute relating to this Agreement.
12.11 Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in Cologne, Germany. The arbitration will be administered pursuant to the rules and procedures of the German Arbitration Act. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12.12 Export Compliance and Use Restrictions. The Services and other Software or components of the Services which Adplorer may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer agrees to comply with all the Export Control Laws as they relate to access to and use of the Services, Software, and such other components by Customer and Users. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, located in, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any Export Control Laws, (iv) no Customer Data created or submitted by Customer is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws, and (v) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Customer’s Users are located. Customer further agrees that Customer will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any Customer Data to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which Customer may be subject. Customer acknowledges that the Service(s) and other Software may not be available in all jurisdictions and that Customer is solely responsible for complying with the Export Control Laws.
12.13 Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.