The Terms of Service ("Terms" or "Agreement") are a contract between You (including any legal entity by which You are employed or on behalf of which You are using the service, collectively "You" or "User") and Quantive USA, Inc. ("Quantive" "Company", " we," or "us") and, to the extent expressly stated, our affiliates. Use this service only after You have carefully read this agreement. By using or accessing the service, You are confirming that You have read, acknowledged, agreed to, and accepted all of the terms and conditions contained in this Terms, as updated from time to time, in order to use our online and mobile business management and analytics services, website and all affiliated websites, including mobile websites, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the "Site"); the downloadable application (the " Application" or "App"); all services; applications and other products provided by Company (Collectively "Service" or "Services") whether provided by us or our Affiliates.
Modification of Terms:
Quantive has the sole discretion to amend this Agreement and the other policies incorporated in the Agreement at any time by posting a revised version on the Site or in the App. All new and/or revised Terms take effect immediately and by using the Service after the date on which any modifications enter into effect, You agree to the latest version of this Agreement. If we make material or substantial changes to it, or make a modification that materially changes Your rights, we will notify You by prominently posting a notice of such changes on the Site or to the e-mail address You provided during registration or by presenting You with new Terms of Service to accept in the App. Continued use of the Services after a modification takes place constitutes Your acceptance of and agreement to be bound by the Agreement as modified. If You object to any changes, You may close down Your account. We encourage You to periodically review the Site for the latest information on our Terms.
In order to ensure that we are able to provide records and notices to You electronically, You agree to notify us immediately of any change in Your email address by updating Your Account information on the Site or by contacting User Support.
As used in this Agreement, the following terms have the following meanings:
"Affiliate" means in respect of a party, any entity that from time to time, directly or indirectly, Controls, is Controlled by, or is under common Control with that party and any other entity agreed in writing by the parties as being an Affiliate in respect of either party.
"Authorized Users" means those directors or employees of (i) the User, (ii) the User's Affiliates (not being Competitors), or (iii) subject to the provisions of this Agreement, the User's or the User's Affiliates' individual contractors (not being, or being employed by, Competitors) or third-party suppliers (not being Competitors) who are entitled to use the Services and to whom the User grants access to the Services.
"Change Request" means a written proposal by the Customer submitted to Company in accordance with Section 9 specifying in sufficient detail the desired changes or modifications to the Services.
"Competitive Purposes" means any and all activities related to the development, design, sale, marketing or support of business analytics products, software or services, other than feedback given to Quantive about the Service.
"Confidential Information" means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after this Agreement by or on behalf of the Discloser to the Recipient in writing, orally, through visual means, or by the Recipient's evaluation, observation, analysis, inspection or other study of such information, data or knowledge, which is now or at any time after the date of this Agreement, owned or controlled by the Discloser. Confidential Information shall include trade secrets, discoveries, knowhow, designs, specifications, drawings, present or future products or services (including the Services) and markets, inventions, prototypes, algorithms, software of any kind or nature, including, but not limited to the Software, object or machine codes, source codes (whether revealed in the SaaS Services or disclosed by other means), computer models and applications, developments, processes, formulae, technology, engineering, architectures, hardware configuration information, diagrams, data, computer programs, business activities and operations, customer lists, reports, studies and other technical and business information and any other information which, by its nature, would reasonably be considered to be of a confidential nature either intrinsically or due to the context and circumstances in which it was disclosed, including, for the avoidance of doubt, information concerning the parties’ Customers, which is of a confidential nature.
"Content" means any data or information that You display, transmit, generate, or store using the Service.
"data controller", "data processor", "personal data", "processing" and " appropriate technical and organizational measures " when applicable, shall be interpreted in accordance with the General Data Protection Regulation of the European Union, as amended from time to time, or other applicable Data Protection Legislation in the relevant jurisdiction.
"Data Protection Legislation" means the General Data Protection Regulation of the European Union, European Directive 2002/58/EC and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by supervisory authorities.
"Documentation" means the online documentation (including online videos, demonstrations, and similar media) or other documentation provided by Quantive describing or otherwise relating to the Service or its use.
"Quantive Technology" means all of Quantive's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Quantive in providing the Service.
"Order Form" means the order form by which Company or an Affiliate of Company and the User or an Affiliate of the User order Services of the Company and which identifies (a) the Services ordered; (b) the Fees for the Services ordered; (c) the Commencement Date(s), Service Period and Usage Right(s) for the Services ordered; and (d) other appropriate information as Company may reasonably require to fulfil the order.
"Service Period" means the period of 12 (twelve) consecutive months following the Commencement Date or any period specified in an Order Form. Company shall limit the User's access to the relevant Services at midnight of the Service Period's last day.
"Service Level Terms" means, where applicable, the service level terms set out in the Order Form for the Services.
"Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
"Year" shall mean the period of twelve months commencing on the Commencement Date and each and any period of twelve months commencing on an anniversary of the Commencement Date subsequent thereto.
2. CONSENT TO USE ELECTRONIC RECORDS.
In connection with the Terms of Service, You may be entitled to receive certain records from Quantive or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate Your use of the Site and the Site Services, You give us permission to provide these records to You electronically instead of in paper form. You also consent that electronic signature on agreements and documents has the same effect as if You, or the entity You're representing signed them in ink.
3. ACCOUNT ELIGIBILITY.
3.1. Age. As a Quantive User, You agree that to register for an account and use the Services, You represent that You are over 13 years of age and not barred from receiving services under the applicable law. For the purposes of these Terms, Minimum age is interpreted as 18 years of age. However, if any law applicable to You requires that You must be older in order for Quantive to lawfully provide the any of the Services to You without parental consent (including using of Your personal data) then the Minimum Age is such older age. Notwithstanding Your age, if any law applicable to You requires that You must get parental consent for the provision of any of the Services, or any other consent, You represent that a parent or legal guardian also agrees to this section on Your behalf or that You have received such consent before accessing our Services.
3.2. Legal Entity. You agree that You are a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account or by using the Site or Services You agree to abide by this Agreement and any other agreements associated with Your use of the Site or Services; and be financially responsible for Your use of the Site.
3.3. Incorrect information. Quantive reserves the right, in our sole discretion, to refuse, suspend, or revoke Your access to the Site and Services upon discovery that any information You provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms, or for any other reason or no reason in Quantive's sole discretion.
3.4. Geographic Area. You represent that You are not a citizen or resident of a geographic area in which access to or use of the Site or Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if Your country of residence or other circumstances change such that the above representations are no longer accurate, that You will immediately cease using the Site and Services.
4.1. Registration. By registering for an account, You agree to provide true, accurate, and complete information on Your Profile and all registration and other forms You access on the Site or provide to us and to update Your information to maintain its truthfulness, accuracy, and completeness; choose a strong and secure password; maintain the security of Your passwords, payment and credit card details and identification; be fully responsible for all uses of Your account; and follow the law and the provisions contained in the Terms.
4.2. Passwords and Account Security. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user ID's, strong and secure password; maintain the security of Your passwords, payment and credit card details, or other login information (collectively, "Passwords") that are provided to You by Quantive or that are generated in connection with Your use of the Service. You are fully responsible for all activities that occur on the Service under any of Your Passwords.
4.3. Maintenance. You agree to keep Your contact information accurate and up-to-date; to notify us immediately if You suspect or become aware of any unauthorized use of Your Account or any unauthorized access to Your password. Notifying us may only create an obligation on Quantive to investigate as You are responsible for anything that happens through Your account unless You close it.
4.4. Limit. Quantive reserves the right to limit Your use of the Services, or restrict, suspend, or terminate Your account if Quantive believes that You may be in breach of this Contract or law or are misusing the Services.
5. RIGHT TO USE SERVICE.
5.1 Ownership. You acknowledge and agree that (i) as between Quantive and You, all right, title and interest in and to the Quantive Technology and Service and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks and other intellectual property or proprietary rights therein or related thereto, whether registered or un registered) are and shall remain Quantive's or its licensors', and this Agreement in no way conveys any right or interest in the Quantive Technology, Service or Documentation other than a limited right to use the Service and Documentation in accordance herewith, and (ii) the Quantive Technology, Service and Documentation are works protected by copyright, trade secret, and other proprietary rights and laws.
5.2 Permitted Rights. Subject to the terms and conditions of this Agreement and any Order Forms or other agreements associated with the Services, Quantive hereby grants to You a non-exclusive, non-transferable, non-sublicensable license to access, view and use the Service. If You make use of the Site or Services, other than as provided herein, in doing so You may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.
5.3 Your Content. By making Your Content available on or through the Service You grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights You have in Your Content, and to use, copy, display and distribute such Content, to prepare derivative works, or incorporate into other works, such Content, in any media now known or not currently known. Quantive does not assert any ownership over Your Content; rather, as between You and Quantive, subject to the rights granted to us in this Agreement, You retain full ownership of all of Your Content and any intellectual property rights or other proprietary rights associated with Your Content.
5.4 Acknowledgment of Risks Related to Content. You represent and warrant that You are the owner, or legal custodian, of all Your Content and have the full authority to display, transmit, generate or store Your Content using the Quantive Service. You represent that You have all rights necessary to grant us a license to use Your Content as described in these Terms. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content. Quantive does not guarantee that any of Your Content will be stored or retrievable at any later time. You also represent that Your Content; and the use and provision of Your Content on the Service, and Your use of the Service will not: (a) infringe, misappropriate or violate a third party's or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
5.5 Feedback. To the extent that You provide to Quantive any suggestions, comments, or other feedback regarding the Service or Documentation, including problems or errors encountered in using the Service, or ideas for enhancements of the Service (collectively, " Feedback"), You hereby assign and agree to assign to Quantive all right, title and interest in and to all such Feedback, and all enhancements resulting from such Feedback, and all property rights therein or related thereto, including any and all patent, copyright, trade secret, trademark, and other intellectual property or proprietary rights.
5.6 Suspension, Limitation, or Termination. Quantive shall be entitled to suspend, terminate, or limit Your access to, and use of, the Service, at any time and for any reason or no reason. Your access to, and use of, the Service may also be suspended for the duration of any scheduled or unscheduled maintenance or downtime, including as a result of power outages, system or Internet failures or other interruptions, or any other acts, omissions, or failures on the part of Quantive's third-party providers.
6. SERVICES AND SUPPORT.
6.1 Framework. This Agreement sets out a framework for the User or any of the User's Affiliates (other than Competitors) pursuant to which Company agrees to provide services to the User or User's Affiliate. Any terms or conditions that may be contained in any purchase order or other form (other than an agreed Order Form) used by the User or any Affiliate of the User shall be without force or effect unless expressly agreed otherwise by the parties in writing.
6.2 Applicability. This Agreement is applicable to any User or User Affiliate signing up for Company's Services either through an Order Form or through the online self-service method. The Agreement is valid and will bind Users or User Affiliates immediately: for Users or User Affiliates using the Order Form, upon execution of the Order form; and for Users or User Affiliates registering through the online self -service method, upon setting up or registration of account.
6.3 Services. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide User the Services in accordance with the Order Form and Service Level Terms of this Agreement. Subject to the terms hereof, Company will provide User with reasonable technical support services in accordance with the terms set forth in the Order Form or this Agreement.
6.4 Services Level Terms. The Services shall be available 99.95% (Enterprise plan) / 99.9% (all other plans), measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
6.5 Order Form. The terms and conditions of this Agreement form an agreement between the User and Company on matters such as the nature and management of the overall relationship between Company and Company's Affiliates. Each Order Form that has been agreed to and executed by the User or an Affiliate of the User and Company or an Affiliate of Company shall constitute a separate contract for the supply of the Services between Company and the User or the Affiliate of the User (as applicable). In case of any discrepancies between the terms and conditions of this Agreement and the Order Form, the terms and conditions of the Order Form shall prevail.
7. RESTRICTIONS AND RESPONSIBILITIES.
7.1 Service Period. In consideration of the payment by the User to Company of the Fees, Company grants User access to the Services from the applicable Commencement Date(s) under the Order Form, until the end of the Service Period. Any Service Level Terms shall apply with effect from the Commencement Date. The Service Period will automatically renew once for the same period unless indicated otherwise by the parties on the Order Form or a termination notice is sent.
7.2 Performance. Company shall use reasonable endeavours to meet any performance dates set out in an Order Form or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence in this Agreement or any order of Services. User acknowledges that Company has no direct control over the availability of bandwidth over the entirety of the internet and that, while Company will use such endeavours as Company deems appropriate to facilitate the Services, Company shall not be responsible for delays caused by such unavailability.
7.3 Upgrades. Company may upgrade the Services from time-to-time provided such changes do not materially and negatively impact the functionality, performance or security of the Services. The User may be unable to access the Services during any period in which routine or emergency maintenance is being carried out.
7.4 Acceptance. If the User does not notify Company otherwise in writing within a period of five days (or such other period as set out in the relevant Order) from the first Authorized User being given access to a Service, the Service shall be deemed accepted. The User acknowledges that Company may sub-contract any of its rights or obligations under this Agreement or any Order Form to a third party (including any Affiliate of Company) and subject to the terms of this Agreement, Company accepts liability for the acts and omissions of any sub-contractors as if they were acts or omissions of Company itself.
7.5 User Responsibility. User shall not store, distribute or transmit any Virus, or any material, information or data through the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
7.6 Unauthorized Use. User shall not (and shall not authorise any third party to) directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); copy, duplicate, modify, translate, or create or distribute derivative works based on the Services or all or any portion of the Software or the Services (except to the extent expressly permitted by Company or authorized within the Services); attempt to remove or alter any proprietary notice or legends appearing in the Service, Quantive Technology, or Documentation; circumvent any technological measure implemented by Quantive or any of Quantive's providers or any other third party (including another user) to protect the Service or Content; access all or any part of the Services in order to build a product or service which competes with the Services; attempt to undertake any security testing of the Services without the prior written consent of Company; unless otherwise provided in an Order Form, use the Services to provide services to third parties (including the User's Affiliates); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels; subject to any provision in this Agreement, transfer, temporarily or permanently, any of its rights under this Agreement or any Order Form; or attempt to obtain, or assist third parties in obtaining, access to the Services, other than as specifically agreed pursuant to this Agreement. You shall not (and shall not authorise any third party to) use the Service, Quantive Technology in any way whatsoever not authorized by this Agreement, including (a) for any Competitive Purposes or to copy any ideas, features or functions of the Service, or (b) for resale, any other commercial exploitation, or any access or use by or for the benefit of any third party. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service. The User shall use its best endeavours to prevent any unauthorized access to, or use of, the Services and shall notify Company promptly of any such unauthorized access or use.
7.7 Authorized Use. User represents, covenants, and warrants that User will use the Services only in compliance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations. User hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User's use of Services. Although Company has no obligation to monitor User's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
7.8 Equipment. User shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, licenses, web servers and the like (collectively, " Equipment"). User shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account or the Equipment with or without User's knowledge or consent.
7.9 Authorized User. In relation to Authorized Users , where reasonably requested by Company, the User shall provide Company with a current list of Authorized Users, which shall be held by Company and used to facilitate access to the Services; where the User wishes to grant access to the Services to its individual contractors, any third party or directors, employees and individual contractors of any third party, Company's express prior written consent is required and Company may impose reasonable conditions on such consent including, without limitation, requiring the User to pay reasonable additional Fees and/or requiring the third party supplier to enter into a direct agreement with Company; and withhold consent at its absolute discretion, including where any third party is a Competitor or an individual contractor is, or is employed by, a Competitor.
7.10 Authorized User Security. User shall ensure that each Authorized User keeps any password(s) for their use of the Services secure and confidential, that such password(s) are changed no less frequently than once every ninety (90) days. In the event that an Authorized User leaves the employment or engagement of the User or a User Affiliate or where the employment or engagement of an Authorized User is transferred such that the User or User Affiliate does not intend for them to have access to the Services, the User shall disable such individual's passwords and shall not issue any new passwords to such individual. The User may freely increase or decrease the number of Authorized Users.
7.11 Tax. User shall promptly inform Company of any tax or other legal requirements in any jurisdiction that might prevent the User or the User's Affiliates from paying any sum due under this Agreement or any Order Form (and where such a restriction exists, then the User shall be required to take all reasonable steps, including taking over the payment obligation of an Affiliate of the User, to ensure Company and/or Company's Affiliates receive the same net amounts by the due date for payment as if the restriction did not exist
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information, and business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company also includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
(i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
This Section shall remain in full force and effect notwithstanding any termination of this Agreement or any Order Forms.
9. DATA PROTECTION.
10. PAYMENT OF FEES.
10.1 Fees. User will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the "Fees"). If User's use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), User shall be billed for such usage and User agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Period or then current renewal term, upon thirty (30) days prior notice to User (which may be sent by email). If User believes that Company has billed User incorrectly, User must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's User support department.
10.2 Billing Options. You may be offered more than one billing option when You register with us. You agree to pay on the basis and at the rate selected when an order was submitted through Your account (" Rate"). Company will periodically charge Your payment method at the applicable Rate. All amounts paid are non-refundable. You remain responsible for any uncollected amounts. For non-flat Rates (e.g., negotiated Order Forms), the amount owed will be calculated based on Company's tracking mechanisms.
10.3 Suspicious Activity. Company is not responsible for click fraud, technological issues or other potentially invalid activity by third parties that may affect the cost of Services. Your exclusive remedy for suspected invalid activity is to make a claim for a Services credit within 90 days of the date of that activity, and Company's exclusive liability is in Company's sole discretion, to issue Services credit for suspected invalid activity. Any Services credits that You may accrue are non-refundable and non-transferable and must be used prior to termination of these Terms or Your account.
10.4 Payment Method. Unless You change or remove Your payment method, Company may store and update (e.g., upon expiration) Your payment method for use with subsequent campaigns, orders and purchases submitted through Your account.
10.5 Payment. The User shall pay all sums due to Company in cleared funds (in the currency specified in the relevant Order Form). All sums due to Company under or in relation to this Agreement and any Order Forms are exclusive of any Sales Tax which shall be charged in addition in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the User in full at the same time as payment is due under the relevant invoice.
10.6 User Deduction. If the User is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to Company pursuant to this Agreement or any Order Form and Company is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to Company will be increased by the amount necessary to yield to Company an amount equal to the sum it would have received had no withholdings or deductions been made.
10.7 Late Payment. Full payment for Services in any given month must be received by Company before Services are provided. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. User shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.
10.8 Non-Fundable Fees. Except where expressly stated otherwise in this Agreement or any Order Form, any Fees paid in accordance with this Section shall be non-refundable in any circumstances including upon early termination of this Agreement or the relevant Order Form.
11. REQUESTING CHANGES IN THE SERVICES (UPGRADES, DOWNGRADES, RENEWAL, CANCELLATION).
11.1 Change Request. In case the User would like to change and/or modify the Services or any part thereof as agreed between the parties in an Order Form the User shall send a Change Request to Company. Upon receiving the Change Request Company shall, within reasonable time, provide the User with (i) a written proposal regarding the specification and proposed Fees related to the implementation of the Change Request; or (ii) a written explanation if the Change Request cannot be implemented. In any case Company shall fully be entitled to accept, propose changes to and/or reject a Change Request at its own discretion without providing any reason to User.
11.2 Change Acceptance. If Company's proposal sent as a response to the Change Request is acceptable to User, then User shall, within fourteen (14) days of User's receipt of Company's proposal, provide Company with a new duly signed Order Form including the agreed changes or modifications which shall constitute a new Order once Company has accepted and signed it. In case the Order Form is not delivered to Company within the aforementioned deadline, Company will no longer be bound to its proposal.
11.3 New Order Forms. For clarification, new Orders Forms will be handled independently with individual Service Periods, and they may not be subject to the Service Level Terms of the previous Order Form(s). In case of a new Order Form, the Service Level Terms may be reviewed and amended accordingly after the implementation of the changes and modifications of the Order Form.
11.4 Deemed Change Request. Without limitations, any requests for functions or features of Services not specified in an effective Order Form, which cannot be implemented without development or architecture changes on the Services, or which have financial consequences on the Services shall be considered as Change Request and are subject to the conclusion of a new Order Form.
11.5 Cancellation or Downgrade. Any cancellation, or downgrade to the Services will only take effect following the end of the applicable Service Period. For the avoidance of any doubt the Fees paid in relation to such Services are not refundable as set out in this Agreement.
12. SUPPORT. Quantive will provide You with technical and non-technical support related to the Quantive Service and Technology. Support will be provided through an email ticketing system in business days with a 48 hour response time. We are not under any obligation to monitor access or use of the Service or Your Content, but we have the right to do so for the purpose of operating the Service, to respond to Your requests for technical support, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to remove or disable access to the Service at any time and without notice, and at our sole discretion, if we determine that Your use of the Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Service.
13. THIRD-PARTY LINKS. The Service may contain links or interact with or be available on third-party websites, apps, content, advertisement, services, social media, products and resources (collectively "Third-Party Services"). Such Third-Party Services are not under Quantive's control or endorsed by Quantive. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from Your use of any Third-Party Services. You further agree that Quantive shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Third-Party Services.
14. DISCLAIMER OF WARRANTIES. To the full extent permitted by applicable law. the service (including any related support and documentation) is provided "AS IS", and "AS AVAILABLE" without warranty of any kind. Without limiting the foregoing, Quantive DOES NOT MAKE ANY, AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Without limiting the foregoing, Quantive does not warrant that: (i) the Service will meet Your requirements; or (ii) the Service will operate without interruption, Virus-free or be error free. Furthermore, Quantive is not responsible for delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. It is acknowledged that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet, servers and services provided to Quantive by third-party providers, and similar network and communications infrastructure.
15. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL QUANTIVE, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, TECHNOLOGY PARTNERS, AFFILIATES OR AGENTS BE LIABLE (JOINTLY OR SEVERALLY) UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT, INCLUDING LOSS OF DATA OR PROFITS, WHETHER OR NOT QUANTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT SUCH LIMITATION IS FAIR AND REASONABLE IN LIGHT OF THE TERMS UNDER WHICH THE SERVICE IS BEING MADE AVAILABLE TO YOU. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY STATED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
16. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Quantive, licensors, resellers, officers, employees, technology partners, affiliates and agents from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys' fees) arising from or related to from Your use or misuse of the Service. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by You, in which event You will cooperate with us in asserting any available defenses.
17. TERM AND TERMINATION.
17.1 Term. This Agreement will remain in effect for a Service Period and will automatically renew for additional 12-month Service Periods until You discontinue Your account by providing notice to Quantive no later than 30 days prior to end of the then current Service Period, unless terminated earlier by written notice from Quantive to You. If You violate these Terms, we reserve the right to deactivate Your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to You. Upon any such termination, we may delete Your Content or other information related to Your account. You may cancel Your account at any time by contacting sales@Quantive.com.
17.2 Termination for Non-Payment. If any amount owed by the User for the Services is overdue, Quantive will send a notification to the User via email or via Service. Should the User fail to pay up the owed amount within thirty (30) or more days after the due date of the respective invoice, Quantive may, without limiting its other rights and remedies, suspend or terminate the provision of the Services to the User until such amounts are paid in full.
17.3 Effect of Termination. In the event of termination, discontinuation or cancellation of the Service or of Your account, all the terms of these Terms that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions on disclaimer of warranties, jurisdiction and applicable law provisions, protecting intellectual property, requiring non-circumvention, our rights to use and disclose Your feedback indemnification, Termination, Disclaimers, Limitation of Liability; Dispute Resolution and General Terms, each, by their nature, contemplate performance or observance after this Agreement terminates. The license grants applicable to Your Content are not impacted by the termination of the Terms and shall continue in effect subject to the terms of the applicable license.
17.4 Duty Upon Termination. Termination of this Agreement and/or closing of Your Account will not relieve User of the requirement to pay for Services performed prior to the Effective Date of the termination
18. GOVERNING LAW AND JURISDICTION.
|Your Domicile||Quantive Entity||Notification Address||Governing Law||Location of Courts/Arbitration Panel having exclusive jurisdiction|
|North America, |
|Quantive USA Inc.||1630 |
Welton Street, Suite 500d
Denver, CO 80202 Billing@Quantive.com
|New York State||New York State|
|United Kingdom, Europe, Australia, New Zealand||Gtmhub EOOD||31 Queens Road |
|The Laws of England and Wales||Courts of England and Wales or High Court in London|
|Not Listed||Gtmhub EOOD||Rayska Gradina 24A Sofia 1619 Bulgaria |
18.2 Dispute Resolution. In the event of any dispute between the Parties, the Party alleging a dispute shall first contact the other Party, in writing stating the facts occasioning the dispute in detail and suggestions on how to resolve the disputes, in a good faith effort to resolve the dispute. Should the dispute not be resolved amicably with sixty (60) days after the first notification, the Parties agree that any and all claims will be resolved by binding arbitration conducted before a neutral single arbitrator, whose decision will be final and binding. The arbitral proceedings will be governed by the AAA Commercial Arbitration Rules ( www.adr.org).
18.3 Class Action. To the fullest extent permitted by applicable law, the Parties each agree that any proceeding to resolve a claim will be conducted only in the respective party's individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
18.4 Costs and Attorney's Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
19.1 Compliance with Laws. You agree to comply with all laws and regulations relating to Your use of the Service and Documentation, including without limitation those relating to export and import, privacy, and personal data protection.
19.2 Assignment. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. You may not assign or otherwise transfer this Agreement or any of Your rights or obligations hereunder without Quantive's prior written consent. Any attempt by You to assign or transfer these Terms, without such consent, will be null.
19.3 Entire Agreement. This Agreement, together with each Order Form and any Exhibits attached thereto constitute the complete agreement between the parties relating to the Service and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Each party acknowledges that in entering into this Agreement, and at the point of entering into each Order, it does not rely on and shall have no rights or remedies (whether in tort (including negligence), under statute or otherwise) in respect of any statement, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party in relation to the subject matter of this Agreement (or relevant Order Form), except for those rights and remedies available under this Agreement (or the relevant Order Form). If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
19.5 Amendment and Waiver. This Agreement may not be amended or otherwise modified except by any express written agreement signed by both Quantive and You. No failure of Quantive to exercise or enforce any of the provisions of this Agreement shall act as a waiver thereof, and any waiver by Quantive must be in an express writing signed by Quantive to be enforceable. Except as expressly set forth in these Terms, the exercise by Quantive of any of our remedies under these Terms will be without prejudice to our other remedies under these Terms or otherwise. Any waiver by Quantive of any breach shall not act as a waiver of subsequent breaches.
19.6 No Agency. Nothing in this Agreement may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties, or giving either party the right to bind the other party or incur obligations on its behalf.
19.8 Notices. All notices required or permitted hereunder shall be in writing. Without limitation, any notice to You shall be sufficient, and deemed received immediately, (i) if sent by email to the email address You submitted as part of Your Registration Information or (ii) by posting to the Service. Quantive shall be entitled to publicly refer to the User as a user of the Services.
19.9 Assignment. This Agreement is not assignable, transferable or sublicensable by User except with Company's prior written consent. Company may transfer and assign, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement or any Order Forms without consent. The User shall enter into any further agreements reasonably required by Company to effect any of the above.
19.10 Interpretation. This Agreement shall be construed and interpreted, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof. The section headings used in this Agreement shall be for convenience only and shall not have any substantive effect hereunder.
19.11 Contact Us. To find more information about the Service and its features, or if You need assistance with Your Account or the Terms, please visit www.Quantive.com. or send us an e-mail at sales@Quantive.com. You can also contact us at
Quantive USA, Inc.
1630 Welton Street, Suite 500d
Denver, Colorado 80202