Terms of Service
These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Supry Inc., doing business as Adlertiser (“Adlertiser”, “we”, “us”, or “our”), concerning your access to and use of the Adlertiser website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Adlertiser Product”). We are registered in Delaware, United States. You agree that by accessing the Site, you have read, understood, and agree to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
1. NON-EXCLUSIVE LICENSE
You and/or your clients, agents, contractors, and/or employees may not:
(1) rent, lease, transfer or otherwise transfer rights to the Adlertiser Product;
(2) provide or assign to third parties access to your account or distribute the keyword monitoring results to third parties, except that if you are an advertising agency, you may provide access to your account and/or
distribute such data to your clients for whom you are acting as an agent or agency;
(3) reverse engineer or disassemble the Adlertiser Product; and/or
(4) take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
2. TERM
The term of this TOU shall be the term selected by you on the purchase order or during online
sign-up, as applicable to you. The term shall begin on the date set forth on the purchase order or for online sign-up, the date that you signed-up, and shall continue in accordance with the term period selected by you (“Term Period”). This TOU shall automatically renew thereafter for additional Term Periods, unless terminated in accordance with this TOU.
3. ACCESS
You agree that you will not use any automated means to access your account with Adlertiser or to monitor or copy the content contained therein except those automated means expressly made available by Adlertiser, if any, or authorized in advance and in writing by us.
4. SECURITY
You are responsible for all activities that occur under your password or account, and it is your responsibility to keep your password(s) and/or account information confidential.
5. DATA OWNERSHIP
Adlertiser will not explicitly share your keyword monitoring results with any third parties; however, you
acknowledge and understand that Adlertiser compiles statistics for all of its clients, and in some instances your keyword monitoring results may overlap with the results of other clients. Adlertiser owns all rights, title, and interest to the keyword monitoring results that it compiles, and grants you the right to use such data during the Term Period in accordance with this TOU.
6. PAYMENT
You agree to pay to Adlertiser all applicable charges to your account in United States dollars.
6.1 Billing Schedule
Your account will be charged in full at the beginning of the initial term and subsequent renewal terms,
or when, and if, you add items to your service, in an amount equal to the total charges for the Term Period including applicable subscription fees, set-up fees, support fees, added items, and taxes, if any.
6.2 Method of Payment
You expressly authorizes Adlertiser to charge your credit card.
6.3 Failure to Make Payment
In the event of any failure by you to make payment, or if you charge-back, you will be
responsible for all reasonable expenses (including attorneys’ fees) incurred by Adlertiser in collecting such amounts plus interest at the rate of 10% per annum or the maximum amount permitted by law, whichever is greater.
6.4 Refunds
100% of all charges are non-refundable.
6.5 Rate Changes
Adlertiser reserves the right to change the rates for its Adlertiser Product in its sole discretion. You will
receive at least 30 days written notice of any rate changes. Rate changes will go into effect at the start of your next renewal term after receipt of such notice (for example, if you are on a month-to-month term, rate changes will start at the beginning of the first month after the 30 day notice period. If you are on an annual term, rate changes will start at the start of your next renewal term period).
7. NO ASSIGNMENT OR RESALE
Except as otherwise indicated herein, you may not resell, assign, or transfer any of your rights under this TOU, and if you attempt to resell, assign, or transfer your rights, we may immediately terminate this TOU without liability to us.
8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
8.1 Limitation of Liability
The information and services included in or available through the Adlertiser Product may include inaccuracies or typographical errors. Adlertiser may make improvements and/or changes to the Adlertiser Product at any time without liability to you and without notice obligation. Adlertiser does not represent or warrant that the Adlertiser Product will be uninterrupted or error-free, that defects will be corrected timely, or that the Adlertiser Product or the server that makes it available, are free of viruses or other harmful components. Adlertiser does not warrant or represent that the use or the results of the use of the Adlertiser Product or the materials made available as part of the Adlertiser Product will be correct, accurate, timely, or otherwise reliable. Furthermore, Adlertiser does not represent or warrant that the Adlertiser Product, and/or payment plans will meet your objectives or needs.
8.2 Exclusive Remedy
Adlertiser’s cumulative liability to you or any other party for any loss or damages, regardless of
the form of action, shall not exceed an amount equal to all amounts actually realized and received by Adlertiser from you during the twelve (12) month period immediately preceding any such liability.
8.3 Disclaimer of warranties
YOU EXPRESSLY AGREE THAT YOUR USE OF THE TSM PRODUCT IS AT YOUR OWN RISK. THE ADLERTISER PRODUCT IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF CONDUCT AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF ADLERTISER PRODUCT AND/ OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE ADLERTISER PRODUCT, OR ANY ECONOMIC BENEFIT YOU MAY
GAIN FROM USE OF THE ADLERTISER PRODUCT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
8.4 Exclusion of Consequential and Other Damages
Adlertiser will not be liable to you or any third-party claimant for any direct, indirect, special, punitive, consequential, or incidental damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of this TOU and/or the use of or inability to use the Adlertiser Product, regardless of the form of action whether in
contract, tort, warranty, negligence, strict liability, breach of any statutory duty, indemnity or contribution, or otherwise, even if Adlertiser has been advised of the possibility of such damages. The exclusion contained in this paragraph shall apply regardless of any failure of the exclusive remedy provided in the foregoing paragraph.
8.5
The foregoing exclusions and disclaimers are an essential part of this agreement and formed the basis for determining the price charged for the products.
9. REPRESENTATIONS
9.1 Your Representations
You represent and warrant
(i) that you have sufficient authority to enter into this TOU;
(ii) that you are in compliance with all applicable laws;
(iii) that you shall not be in violation of any obligation, contract or agreement by entering into this TOU, by performing your obligations under these terms or by authorizing and permitting Adlertiser to perform the Adlertiser Product hereunder;
(iv) that you shall comply with all of the terms and conditions of this TOU, as amended from time to time; and
(v) that all information provided by you is truthful, accurate, and complete, and is not
misleading in any way;
(vi) your use of the Adlertiser Product is for the sole purpose and benefit of you or the organization, firm, or company that you represent, and is not for the purpose of sharing information gleaned from the system with, disseminating information to, or evaluation for the purpose of developing a competing product or service offering; and
(vii) you and/or your firm, organization, or client(s) are not a competitor of or intending to become a competitor of the Adlertiser Product.
9.2 Adlertiser Representations
Adlertiser represents and warrants
(i) that it has sufficient authority to enter into this TOU;
(ii) that it is in compliance with all applicable laws;
(iii) that it shall not be in violation of any obligation, contract or agreement by entering into this TOU, by performing its obligations under these terms or by authorizing and permitting you to use the Adlertiser Product hereunder;
(iv) that it shall comply with all of the terms and conditions of this TOU, as amended from time to time; and
(v) that all information provided by it is truthful, accurate, and complete, and is not misleading in any
Way.
10. INDEMNIFICATION
10.1 Your Indemnification
You agree to indemnify and hold us (and our partners, directors, officers, employees and agents) harmless against any and all expenses and losses of any kind (including reasonable attorneys’ fees and costs) incurred by us (and our directors, officers, employees and agents) in connection with any claims of any kind made by a third party arising out of your use of the Adlertiser Product, and/or a breach of your representations or warranties.
10.2 Adlertiser Indemnification
Adlertiser agrees to indemnify and hold you (and your directors, officers, employees and agents) harmless against any and all expenses and losses of any kind (including reasonable attorneys’ fees and costs) incurred by you (and our directors, officers, employees and agents) in connection with any claims of any kind made by a third party arising out of a breach of Adlertiser’s representations or warranties.
11. NOTICES
We will provide all notices to you to the contact person and at the address, email address identified on your account or on your purchase order. You must send all notices to us at support@adlertiser.com or such other address as provided on to you in writing from time to time.
12. NO AGENCY
The parties to this TOU are independent contractors and this TOU does not create and shall not be
construed to create an agency, partnership, joint venture or other association relationship between the parties.
13. TERMINATION AND CANCELLATION
13.1 Your Right to Terminate
You may terminate this TOU and your account by using an online cancellation method if one is provided. Cancellation requests issued at least 24 hours prior to the end of the current Term Period, will be effective at the end of your current Term Period, otherwise, your TOU will auto renew for an additional Term Period.
13.2 Our Right to Terminate
Adlertiser may, in its sole discretion, terminate your account in the following circumstances:
(1) your failure to make payment in accordance with Adlertiser’s terms;
(2) if Adlertiser has a good faith reason to believe that you violated this TOU, and/or
(3) if Adlertiser has a good faith reason to believe that you are building, developing, or contracting for the development of a competing product to the Adlertiser Product.
All decisions made by Adlertiser in this matter will be final and neither Adlertiser nor its partners, employees, directors, or assigns shall have any liability with respect to such decisions.
13.3 Effect of Termination
Upon termination, you will no longer be able to access your account. Regardless of which party terminates this TOU, you will be responsible for all charges incurred up to and through the date of termination including payment obligations during the remainder of any unexpired initial Term or renewal term and such charges will be due and payable immediately.
14. SURVIVAL
Sections 8, 9.1 (vi) and (vii), 10, 15, 18, 19, and 23 shall survive termination.
15. PROPRIETARY RIGHTS
Title, ownership rights, and intellectual property rights in and to the Adlertiser Product, content, and keyword monitoring results shall remain with Adlertiser. The Adlertiser Product, and the intellectual property operating it are protected by international copyright treaties. This License gives you no rights to such content, keyword monitoring results, or code, except as explicitly stated herein.
16. LINKS
You acknowledge that the Adlertiser Product may contain hyperlinks to third party web sites. You
understand and agree that the linked sites are not under the control of Adlertiser, and Adlertiser is not responsible for, and makes no representations or warranties with respect to, the contents or privacy policies or practices of any linked sites or any link contained therein. The inclusion of a linked site is for your convenience only and is not intended and should not be construed as an endorsement or recommendation by Adlertiser of the linked site or its content.
17. MARKETING
Both Parties agree that Adlertiser may use your company’s name, logo, and trademarks in its marketing materials, including but not limited to Adlertiser’s website, presentations, case studies, and other promotional materials, solely for the purpose of identifying you as a client of Adlertiser. Such use will be in accordance with your brand guidelines (if provided) and will not imply endorsement beyond the fact of client engagement. Neither Party shall use the other’s name or trademarks for any other purpose without prior written consent.
18. CONFIDENTIALITY
“Confidential Information” means any information disclosed to one party (“Transmitter”) by the other (“Receiver”), either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that the Receiver can establish
(i) was publicly known and made generally available in the public domain prior to the time of disclosure;
(ii) becomes publicly known and made generally available after disclosure other than through the Receiver’s action or inaction; or
(iii) is in the Receiver’s possession, without confidentiality restrictions, at the time of disclosure as
shown by Receiver’s files and records immediately prior to the time of disclosure.
The Receiver shall not at any time
(a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information;
(b) use any Confidential Information; or
(c) reproduce or otherwise copy any Confidential Information, except as necessary in
connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law.
Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Transmitter’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Transmitter immediately upon Transmitter’s request.
19. ADLERTISER DAMAGES FOR YOUR BREACH
The following damages provision is in place to compensate Adlertiser in the event of unauthorized use by you or receipt of information regarding the Adlertiser Product by competitors from you. Because such damage may be difficult to measure: you agree and understand that Adlertiser shall be entitled to damages in the amount of $500,000 per incident for a breach by you of any of the following sections which are to the benefit of a competitor or intended competitor of the Adlertiser Product: 9.1 v, vi, and/or vii, 3, 4, and/or 18 and you agree to pay such damages. This provision does not limit Adlertiser’s rights to seek any other remedies available in law or in equity or otherwise.
20. CONSTRUCTION
Adlertiser may change this TOU and/or rates at any time upon written notice to you. Any use of the
Adlertiser Product after such notice shall be deemed to be continued acceptance of this TOU including its amendments and modifications. Adlertiser reserves the right to discontinue offering the Adlertiser Product at any time and in such instance you shall be entitled to a refund of all pre-paid money less any money owed.
21. FORCE MAJEUR
If the performance of any part of these Terms by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, fire, judicial or governmental action, labor dispute, war, insurrection, technical failure, act of God or any other causes beyond the control of that party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
22. ASSIGNMENT BY ADLERTISER
Adlertiser may assign this agreement due to a merger or acquisition. Should Adlertiser re-organize as a corporate entity, the Partners may assign this agreement to such corporate entity. You will
receive written notice of any such assignment.
23. MISCELLANEOUS
This TOU
(i) shall be governed by and construed in accordance with the internal substantive laws of Delaware, without giving effect to its principles of conflicts of law; and
(ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties concerning the subject matter hereof. You submit to jurisdiction and venue in the state and federal courts located
in the State of Delaware, and further agree that any cause of action you may bring arising under this TOU
will be brought by you exclusively in a state or federal court located in the State of Delaware.
The breaching party agrees to pay all legal expenses of the other, including reasonable attorney’s fees, of the non-breaching party, provided that Partnership shall not have any liability in excess of the exclusive remedy provision provided herein. In the event that any provision of this TOU is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this TOU will remain in full force and effect. The waiver of any breach or default of this TOU will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving part.