Terms Of Service
Way2target Terms of Service
Effective: May 25, 2018
These Terms of Service together with any applicable Insertion Order(s) and/or Product Addendum(s), (collectively, the “Agreement”) describe the terms and conditions under which you (“Client”) may access and use Way2target’s Services.
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING Way2target’S SERVICES, OR CONTINUING TO USE THIS WEBSITE, CLIENT AGREES TO BE BOUND BY THIS AGREEMENT.
IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY (FOR EXAMPLE, AS AN ADVERTISING AGENCY OR AUTHORIZED RESELLER ON BEHALF OF A CLIENT), CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY, AND THE TERM “CLIENT” WILL ALSO REFER TO SUCH ENTITY.
Way2target MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, CLIENT AGREES TO RESOLVE DISPUTES WITH Way2target THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND CLIENT WAIVES CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 15.
- “Account” means a Client account for access to the Platform.
- "Ad" means any display creative advertisement that is targeted to an end user through the Services.
- “Way2target API” means Way2target’s application programming interfaces and the accompanying Documentation, code, and related materials, which are subject to the API license agreement found at https://www.way2target.com/tos.html.
- “Way2target Materials” means the Platform, Way2target API, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
- “Agency” means an advertising agency acting on behalf of a Client.
- “Applicable Law” means any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC and the General Data Protection Regulation (“GDPR”) upon its effective date) that relate to a party’s obligations under this Agreement.
- “Authorized Resellers” means resellers approved by Way2target in its sole discretion.
- “Campaign Data” means performance and measurement data made available through the Platform that relates to Client’s Ads and campaigns launched through the Services.
- “Client Content” means all logos, Ads, background images, trademarks, fonts, hex codes, images, graphics, text, audio, video files, product feeds, and other content in any media and format provided by Client or obtained by Way2target for use with the Services.
- “Client CRM Data” means any email addresses or other CRM data about Client’s end users, customers or prospective customers provided by Client or obtained by Way2target in connection with the Services
- “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by Way2target to Client.
- "European Territories" mean the European Economic Area and Switzerland. For the purpose of this Agreement, the expression "European Territories" shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
- “Feedback” means information regarding the features and performance of the Services and Materials, including (without limitation) reports of failures, errors, bugs, or other malfunctions that Client encounters through its use of the Services.
- “Insertion Order” or “Order Form” means a document executed by both parties that specifies the type of Services to be provided to Client by Way2target for campaigns, the duration of the Services, a budget, fees, and other specific details for the Services.
- “Managed Account” means a Client account that Way2target provides support to and meets minimum spend requirements that may be adjusted from time to time at Way2target’s sole discretion.
- “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that Way2target has partnered with to provide the Services.
- “Platform” means the Way2target website, dashboard, and tools that Client has access to through the Services to create, launch, monitor, pause, and stop an Ad or campaign.
- “Product Addendum” means any Service specific terms and conditions.
- “Services” means any Way2target offering that Client agrees to receive, subject to this Agreement, any applicable Product Addendums, and, if applicable, Insertion Order(s).
- “SDK” means Way2target’s software development kit to support its mobile retargeting Ad Services.
- “Service Data” means data (and each component of such data) that is collected by Way2target from end users using a pixel (or other script or code) installed on Client’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 any Client CRM Data or Campaign Data. If Client has configured or agreed for Way2target to implement the pixel (or other script or code) to send hashed end user email addresses from Client’s website to Way2target or has authorized Way2target to collect and store hashed end user email addresses, these hashed end user email addresses will be Service Data.
- “Technology” means the Way2target proprietary technology that allows Way2target to provide the Services, including the Way2target pixel (or other script or code), the Way2target API, the SDK, or other mutually agreed upon means.
2. THE Way2target SERVICE
2.1 The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order or Product Addendum. If Client opts-in to cross-device, Client agrees: i) to allow Way2target to collect and/or use hashed end-user email addresses from Client's Sites and store it as a persistent part of our cross-device graph; ii) such collection and/or usage of hashed email addresses will be Service Data; and iii) Way2target may combine such hashed emails with data or hashed emails of other participating customers in order to recognize users across devices.
2.2 Way2target License Grant. Subject to Client’s payment of all applicable fees and the terms set forth in this Agreement, Way2target grants to Client during the Term the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense : (i) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (iii) for mobile-related Services to integrate the Client’s MMP, and/or (iv) to integrate through other mutually agreed upon means (e.g., integration using the Way2target API).
2.3 Client License Grant. Client grants Way2target a non-exclusive, worldwide, royalty-free, sublicenseable and transferable, license to access, use, copy, distribute, reproduce, adapt, modify, perform, display, publish, transmit, format, store, and archive the Client Content for the purpose of providing the Services, supporting Client’s use of the Services, and in promotional materials related to the Services. For Clients requesting Way2target’s dynamic creative advertisement services: i) Client agrees that Way2target will retain ownership of any underlying techniques, know-how, templates, and design methods; and ii) Client acknowledges that Way2target will connect to Client’s website to pull and download images at the explicit direction of Client for the purpose of providing Services.
2.4 Requirements. Client will comply with all requirements for use of the Services communicated by Way2target to Client via Documentation, and acknowledges that absent such compliance, Way2target may be unable to provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include: (i) including tags, pixels, script, or code supplied by Way2target on Client's website; (ii) installing the SDK or integrating with Client’s MMP, into Client’s mobile or tablet applications; (iii) supplying appropriate Client Content necessary for Way2target to provide the Service; and/or (iv) allowing access to data collected by Client’s mobile measurement partner. Way2target will have no liability to Client for such inability to provide the Services, if such inability is a result of Client’s failure to comply with this Section 2.4.
2.5 Modifications. Way2target will host the Services and may update the Services from time to time in accordance with this Agreement. If Way2target provides Services updates to Client that require action on Client’s part, Client will integrate the updates within 30 days. Way2target may make changes to the Services (including discontinuation of all or part of the Services) at any time. Way2target will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to Way2target.
2.6 Display of Ads. Client can request to work with Way2target (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to Way2target. Client acknowledges that Way2target has limited control where and how often Ads will be displayed within the Network. Way2target is committed to provide quality inventory, however, at times Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client unless Client excludes the website in accordance with applicable Documentation. If a Client raises written concern about a website that Ads are being served on, Way2target will to the best of efforts remove the Client's Ads from serving on this inventory. Way2target will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Client notifies Way2target in writing that Ads are being displayed in this manner, Way2target will use commercially reasonable efforts to prevent Ads from continuing to display on such inventory sources. Client Content must comply with Documentation and advertising policy requirements or Way2target may be unable to provide the Services with respect to such Client Content. Way2target retains the authority to remove any Client Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion. Way2target reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies or Documentation.
2.7 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the Way2target Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Client agrees that Way2target may accept certain third-party terms and conditions as agent on Client's behalf where necessary for Way2target to perform Services requested by Client, for example, terms related to running campaigns on Facebook Website Custom Audiences. Links to or copies of any such terms will be provided upon request. Client hereby authorizes Way2target to accept such terms on Client's behalf in order to carry out the Services and agrees and acknowledges that (i) Client will be subject to such additional terms and (ii) Way2target shall have no responsibility nor liability in relation to such additional terms.
2.8 Promotions. Way2target may offer promotions to Client, subject to any terms set out in the applicable Documentation or, if applicable, Insertion Order. If Client accepts the promotion, Client understands and agrees that after the promotion, the campaign will automatically continue as a paid campaign, unless Client pauses or completes the campaign as described in the applicable Documentation. Client is responsible for all campaign costs that occur beyond the parameters of the promotion described in the applicable Documentation.
2.9 Advertising Policy Guidelines. Client will adhere to the advertising guidelines as set out by Way2target in accordance with the policies set by our Network, Applicable Law, or applicable Documentation. Client is responsible for ensuring that Client Content and Client Sites, as defined below, are compliant with these policies. Way2target reserves the right to review campaigns and Ads at any given time. Our Network’s policies and self-regulatory bodies’ codes of conduct are constantly being reviewed and updated, and as such, active or approved campaigns may be reviewed, to ensure that they comply with current policies, codes, and legal requirements.
3. AGENCY CLIENTS.
3.1 Authority, Liability, and Direct Relationship. Where Client is an Agency or Authorized Reseller entering into Services on behalf of their Clients: (i) Agency or Authorized Reseller represents that it has the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement; (ii) upon request, Agency/Authorized Reseller will provide Way2target with written confirmation of the relationship between Agency/Authorized Reseller and its client (this confirmation should include their client’s acknowledgement that Agency is indeed its agent and is authorized to act on its behalf in connection with the Agreement); (iii) upon the request of Way2target, Agency will provide Way2target with written confirmation that Client has paid to Agency funds sufficient to make payments pursuant to the Agreement; (iv) Agency or Authorized Reseller accepts responsibility for the actions of its Client Accounts and liability for all expenses incurred through the provision of Services to its Clients, and assumes responsibility for ensuring compliance with and breach of this Agreement by its Clients; (v) except as otherwise set forth hereunder, Agencies or Authorized Resellers will ensure the performance of their respective Client’s obligations under this Agreement and will have joint and several liability in respect of Client’s breach of this Agreement; (vi) Agency or Authorized Reseller Clients may request at any time that their Account be migrated to another agency or to a direct Client Account with Way2target and nothing in this Agreement will prevent Way2target and a Client from entering into a direct relationship; (vii) Way2target reserves the right to reasonably object to any Clients at Way2target’s sole discretion.
3.2 Support and Marketing. Where Client is an Agency or Authorized Reseller: (i) Way2target will provide commercially reasonable support during Way2target’s normal business hours, but Agency or Authorized Reseller acknowledge that they will be solely responsible for providing support to their Clients in connection with such Clients’ use of the Services;(ii) Agency or Authorized Seller is solely responsible for marketing efforts related to the “go to market” lifecycle for Services; provided that any marketing materials prepared and/or used by Agency or Authorized Reseller are in compliance with Way2target marketing requirements and other Documentation; and (iii) Way2target reserves the right to request changes or removal of any Agency or Authorized Reseller materials used to market the Services.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with Way2target is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify Way2target of any breach of security, misuse, or unauthorized use of its Account or credentials.
4.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred because of changes made using Client’s Account will be included in Client's regular bill or invoice. Way2target will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Client. When Client increases or decreases its budget it may take up to one week for the new authorized budget to take effect.
4.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by Way2target, service fees will be based on Way2target's measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
4.4 Campaign Optimization. Way2target may optimize towards Client's performance or goals by programmatically using Client Content to create new content (such as Ads and, if Client agrees to receive such Services, emails, or other necessary marketing materials) and inserting them into Client's active campaigns, or create, change, or pause campaigns on the Client's behalf, subject to Client's budget. Way2target will subsequently notify Client if Way2target makes material changes to Client's Campaigns or Ads. In addition to Way2target's optimization services and features, Way2target may offer Managed Account Services to Client.
5. PAYMENT TERMS
5.1 Auto-Prepay Accounts. For prepay accounts, Client agrees to keep valid payment method information (for example, credit card or PayPal account information) on file in Client's Account always and Way2target will pre-charge Client weekly for each campaign budget amount as determined by Client on the Platform. Client authorizes Way2target to charge such amounts using the valid payment details provided by Client. Client understands that all funds transferred to Way2target become the property of Way2target upon transfer to compensate Way2target for costs involved in delivering the Services, including creating and maintaining, and providing access to the Documentation, Network, Platform, Technology, and Campaign Data. If Client suspends a campaign or cancels Client’s Account, Client may request reimbursement in the amount of the prepaid funds not attributed to any completed campaign(s) within 180 days after the campaign is paused or this Agreement is terminated; provided that any such reimbursement is at Way2target’s sole discretion. Requests for reimbursement made after 180 days after the campaign is paused or this Agreement is terminated may not be transacted.
5.2 Auto-Postpay Accounts. For recurring payment accounts, Client agrees to keep valid payment method information (for example, credit card or PayPal account information) on file in Client's Account at all times. Client authorizes Way2target to charge recurring amounts due weekly using the valid payment details provided by Client. Way2target reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by Client within 30 days of receipt or will be barred.
5.3 Insertion Order Accounts. Way2target may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. Way2target reserves the right to request a prepayment and/or prepaid retainer from Client at any time. Way2target will send Client a monthly invoice via email reflecting the amount owed by Client to Way2target. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. Way2target may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client will reimburse Way2target for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.
5.4 General Payment Terms. Client agrees that Client has all necessary rights, power, and authority to authorize each such payment. For certain payment methods, the issuer of Client's payment method may charge Client a foreign transaction fee or other charges. Client should check with the payment method service provider for details. If Client develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or Way2target otherwise designates Client as a credit risk, Way2target reserves the right to require prepayment. Client agrees to maintain sufficient funds or credit availability in Client's payment method to satisfy Client's amounts due and that Way2target will have no obligation to provide the Services if sufficient funds are not available at the time Client's payment is submitted, and Way2target reserves the right to suspend Client's campaigns due to failed payments or insufficient balance.
5.5 Currency and Taxes. All payments to Way2target will be made in United States Dollars, unless otherwise agreed to in an Insertion Order or offered through the Platform. Payments are quoted exclusive of any taxes. Client 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 Way2target’s net income.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. Way2target Materials are the sole and exclusive property of Way2target or its third-party licensors, as applicable, and are protected by Applicable Law. Client’s rights to the Way2target Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses. Client Content is the sole and exclusive property of Client or its third-party licensors as applicable and is protected by Applicable Law. Way2target’s rights to the Client Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Client will not (i) modify the Way2target Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any Way2target Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the Way2target Materials, or use the Way2target Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the Way2target Materials; (v) deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Way2target 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; (vii) make or publish any representations or warranties on behalf of Way2target concerning the Services or Way2target Materials without Way2target’s prior written approval. When reproducing Way2target Materials, Client will include proprietary rights notices contained on the Way2target Materials.
6.3 Export Control Laws. Way2target 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. Client must comply with all such regulations and is responsible for obtaining any related licenses.
6.4 Feedback. Feedback provided to Way2target may be used to develop and improve the Service, Way2target Materials, new products, and services. To the maximum extent permitted by law, Client grants Way2target a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit Feedback without restriction.
7. DATA RIGHTS, RESTRICTIONS AND PRIVACY
7.1 Client CRM Data. Way2target will only use Client CRM Data for the purpose of providing the Services and it shall be treated as Client Confidential Information. However, Way2target may disclose Client CRM Data to third parties solely as required to provide Services to you in accordance with the Way2target Data Processing Addendum. For the purposes of this Agreement and to assist with compliance with Applicable Law, Way2target is a data processor and Client is the data controller of the Client CRM Data and Way2target shall process such Client CRM Data only in accordance with the Way2target Data Processing Addendum.
7.2 Service Data and Campaign Data. Way2target is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. Way2target grants Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.
7.3 Way2target Data Privacy Responsibilities. If and to the extent Service Data or Campaign Data contain any personal data of individuals located in European Territories, Way2target Advertising Limited in Ireland will be the data controller of such data and will process this data in compliance with Applicable Law. Way2target Advertising Limited will use reasonable efforts to cooperate with Client in responding to regulatory or data subject inquiries received by Client about Way2target’s collection and processing of the Service Data or CRM Data containing personal data from individuals located in European Territories.
7.4 Client Data Privacy Responsibilities. Client will comply with all Applicable Laws that relate to individual third-party privacy and publicity rights and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses (and, where legally required, obtains consent to) its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site third parties, including Way2target, may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and that data collected may be used by third parties, including Way2target to target advertising on other sites or applications based on the end users’ online activity); and (ii) informs end users how they may opt-out from receiving targeted advertisements which may include links to by visiting the NAI website opt-out page here: http://www.networkadvertising.org/choices/ or the DAA opt-out page here: http://www.aboutads.info/ or, for end users located in European Territories, the EDAA opt-out page here: http://youronlinechoices.eu/. Client will only send personally identifiable information or personal data to Way2target through the pixel or otherwise consistent with Way2target’s instructions or Documentation.
7.5 Client agrees that in order for Way2target to comply with Applicable Law in providing the Services, Client may be required to host a notice and consent collection mechanism on its website that provides Way2target and members of its Network with consent to the placing of cookies on end users' browsers. If Client fails to implement this mechanism (either as a feature of the Way2target Services or through its own similar mechanism, subject to Way2target’s approval of any such Client provided mechanism) then Way2target may not be able to perform the Services under this Agreement.
7.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY, Way2target WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD Way2target HARMLESS WITH RESPECT TO: (A) CLIENT’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS PRIVACY PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW, (B) THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT, OR (C) DATA SECURITY OR DATA USE IF Way2target ACTS IN ACCORDANCE WITH CLIENT’S INSTRUCTIONS.
8.1 By Client. Client represents and warrants to Way2target that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Client Content and the Client websites, mobile or tablet applications ("Client Sites") do not include, and does not give access via hyperlinks to any property containing, materials that are obscene, defamatory or contrary to any Applicable Law; (iii) Client Content and Client Sites comply at all times with the Documentation (including, but not limited to, the Way2target guidelines and policies) and Applicable Laws in all jurisdictions where Client Ads and Client Sites are viewed; (iv) Client Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (v) the Client Content does not infringe or misappropriate the rights of any third party; and (vi) the collection, transfer, use and disclosure of Service Data or Client CRM Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Client) or any statements in its own posted privacy notice or similar privacy statement.
8.2 COPPA Compliance. In accordance with the Children’s Online Privacy Protection Rule (COPPA), Client represents and warrants that it will not place Way2target’s pixel on any website that is directed (in whole or in part) to children under the age of thirteen (13), and that it will not knowingly send to Way2target any information derived from children under the age of thirteen (13).
8.3 By Way2target. Way2target represents that: (i) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (ii) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 8.3(ii), Way2target’s sole liability and Client’s sole remedy will be re-performance of the Services by Way2target or Client’s termination rights under Section 11.
8.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 8, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Way2target EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND MATERIALS MADE AVAILABLE BY Way2target UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) Way2target EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, (B) Way2target DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, AND (C) Way2target MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH USE OF THE SERVICES.
9.1 Client indemnification. Client will defend, indemnify, and hold harmless Way2target and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Client, the Client Content or Client CRM Data.
9.2 Way2target Indemnification. Way2target will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the Way2target Materials, but excluding any software incorporated into Way2target's software under an open source license. In no event, will Way2target have any liability under this Section 9.2 arising from (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the Way2target Materials with any third-party software, process, or service not provided by Way2target. Way2target’s indemnification obligations in this Section 9.2 will be Way2target’s sole liability and Client’s sole remedy for any claims that the Services or Materials violate, infringe, or misappropriate any intellectual property right.
9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed, and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
10. LIMITATIONS ON LIABILITY.
10.1 Disclaimer of Indirect Damages. Way2target WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF Way2target IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Way2target’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO Way2target UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION
11.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while Client uses the Services and will terminate upon written notice of cancellation of Client’s Account by Way2target or Client (“Term”), such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).
11.2 Post-Termination Obligations. Upon termination of this Agreement (i) Way2target will cease providing the Services and permitting access to the Platform to Client; (ii) Client will within thirty (30) days’ pay to Way2target any fees that have accrued prior to the effective date of termination; and (iii) Client will remove the Way2target pixel from its website and Way2target will not be liable for any damages (or any benefit to Way2target) resulting from Client’s failure to remove the pixel. Provided Client is not in breach of the Agreement, subject to Section 5, Way2target may refund Client for any amounts prepaid for Services that were not performed prior to termination. The following Sections will survive expiration or termination of this Agreement: Sections 1, 6-10, 11.2, 12-13 and 15-16.
11.3 Insolvency. Way2target may immediately terminate this Agreement and move Client to prepay pursuant to Section 5 in the event that (a) Client (i) fails to satisfy any enforceable, final and material judgment against it, (ii) fails to pay its fees as they become due or (iii) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts or (b) a court appoints, or Client makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code) for Client or all or substantially all of its assets. Client acknowledges that Way2target may set off any liability owed to Client against any liability for which Way2target determines Client is liable to Way2target related to Services under this Agreement. In the event that an Agency (but not the Agency’s applicable client) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts, Way2target shall have the right to notify Client directly in effort to settle outstanding liabilities under this Agreement.
Each party retains all right, title, and interest to its own logos and trademarks. The Way2target logos and names are trademarks of Way2target, Inc. All other trademarks and product or company names mentioned in the Services or Way2target Materials are the property of their respective owners and may not be used without the prior written permission of the owner. Reference to any products or services by name or otherwise does not imply endorsement by Way2target. Notwithstanding the foregoing, Way2target may use Client’s logos, name, and any trade names to (a) perform the Services and (b) indicate in promotional materials that Client is a client of the Way2target Services. All goodwill derived from the use of any trademarks will inure to the benefit of the respective trademark owner.
Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 13; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 13 will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
Client may assign this Agreement upon twenty (20) days written notice to Way2target after the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Any other attempt to transfer or assign is void. Way2target retains the rights to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
15. RESOLVING DISPUTES: FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.
15.1 Please contact Way2target first! Way2target wants to address Client's concerns without resorting to formal legal proceedings. Before filing a claim, Client agrees to try to resolve the dispute informally by contacting Way2target first through support@Way2target.com or via their allocated Account Manager.
15.2 Judicial forum for disputes. Client and Way2target agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in San Francisco County, California, subject to the mandatory arbitration provisions below. Client and Way2target consent to venue and personal jurisdiction in such courts.
U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
Both Parties Agree to Arbitrate. Client and Way2target agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Arbitration Procedures. The American Arbitration Association (AAA) (https://www.adr.org) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (https://www.adr.org/sites/default/files/commercial_rules.pdf). The arbitration will be held in the United States in accordance with the venue specified in Section 15.2.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Way2target will pay all arbitration fees for Client on a pre-pay plan. Way2target will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that Client's claim is frivolous.
Exceptions to Agreement to Arbitrate. Either Client or Way2target may assert claims, if they qualify, in small claims court in San Francisco, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Arbitration will not be binding with regards to the Way2target Materials at Way2target’s sole discretion. If the agreement to arbitrate is found not to apply to Client or Client's claim, Client agrees to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to resolve Client's claim.
Opt-out of Agreement to Arbitrate. Client can decline this agreement to arbitrate by sending an email within 30 days of first accepting this Agreement to support@Way2target.com clearly stating that Client wishes to opt out of arbitration with Way2target and include Client's first and last name, the company for which the account was created, and the email address associated with the account.
15.4 CLASS ACTION WAIVER. Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Way2target Materials, or any services provided by Way2target will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
15.5 Controlling Law. This Agreement is governed by the law of the state of California except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.
16.1 Amendments. Way2target reserves the right to revise this Agreement, and Client’s rights and obligations are at all times subject to the Agreement then posted at Way2target.com. Client’s continued use of the Service constitutes acceptance. Way2target will also endeavor to notify and give Client an opportunity to review and accept the revisions to the Agreement, which acceptance may be manifested in electronic form (such as through a click-through agreement). However, subject to applicable law, the inability to contact Clients through a valid email address regarding the revised Agreement and obtain express acceptance in no way limits the revised Agreement’s effectiveness and application.
16.2 Independent Parties. Way2target is an independent contractor and not an agent of Client in the performance of this Agreement. This Agreement is not to be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third-party beneficiaries (except the indemnitees referenced in Section 9).
16.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding 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.
16.4 Force Majeure. Way2target will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Way2target’s reasonable control.
16.5 Use of Third Parties. Subject to Section 13, Way2target may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf.
16.6 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.
16.7 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.
16.9 Notice. All notices to Way2target must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by Way2target. Legal notices to Way2target must be sent to legalnotices@Way2target.com with a copy to Way2target, Inc., Attn: Legal, 2300 Harrison St, Fl 2, San Francisco, CA 94110, U.S.A. Notices to Client will be sent to the Client Account email address on file and/or posted on the Platform dashboard and are deemed effective when sent or posted.
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