The following terms and conditions apply to the services provided by ReTargeter.com (“ReTargeter”), and constitute an agreement between the parties. The agreement (the “Agreement”) is between SellPoints, Inc., a Delaware corporation with its principle place of business at 1198 65th Street Suite 250 Emeryville, CA 94608 and the party or parties that selects “I have read and agree to the Terms and Conditions” on the ReTargeter website (the “Advertiser”) and is effective when the Advertiser selects “I have read and agree to the Terms and Conditions” on the ReTargeter website.
2. Advertising Obligations
ReTargeter’s sole obligation under this Agreement will be to use commercially reasonable efforts to deliver the display advertisements (“Creative”) in the manner specified by Advertiser on the ReTargeter website (the “Order”) unless otherwise specified. All Creative will be subject to ReTargeter’s approval. ReTargeter reserves the right to reject, discontinue, or omit any Creative or any part thereof for any reason. This right will not be deemed waived by acceptance or actual use of any Creative.The Advertiser grants ReTargeter a non-exclusive, non-transferable, worldwide right to reproduce and publicly display the trademarks, trade names, service marks, and logos of Advertiser for purposes of advertising. ReTargeter will not disclose any details of the campaign, including but not limited to: campaign budget, campaign type, campaign duration, campaign metrics, and results of any and all campaigns associated with the Advertiser without prior consent.
All payments will be made in advance via Credit Card unless: (a) otherwise specified on the order; or (b) credit is approved under special circumstances. Upon approved credit, payment will be made within 30 days from date of invoice. In the event Advertiser pays with credit card, Advertiser expressly agrees that Advertiser will not charge back on such credit card account. Billing will recur monthly, or according to the billing period specified in the Order, until the end date specified in the Order. If no end date is specified, billing will recur until Advertiser pauses or cancels the campaign. In event of a late payment, defined by a payment that is received after the due date, ReTargeter reserves the right to apply a non-refundable 1.5% late fee to the unpaid monthly balance. If Advertiser requests to pause or cancel a campaign, a credit will be maintained in the Advertiser’s ReTargeter account for the remaining unused amount.
4. Limitation of Liabilities
Under no circumstances will ReTargeter be liable for any indirect, incidental, consequential, special or punitive damages of any kind or nature (even if such damages are foreseeable, and whether or not Advertiser had been advised of the possibility of such damages) arising from any aspect of this Agreement.
Notwithstanding any other provision of this Agreement, the liability of Retargeter will be limited to the total amount paid by Advertiser to Retargeter under this Agreement.
Retargeter will not be liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Retargeter’s control affecting production or delivery in any manner.
Advertiser will indemnify Retargeter and hold Retargeter harmless from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Retargeter, arising out of or related to (a) Advertiser’s breach of any of the representations and warranties in this Agreement; (b) nonfulfillment of any obligation hereunder to be performed by Advertiser; or (c) infringement or alleged infringement of a third party’s intellectual property rights resulting from Retargeter’s performance of its duties or exercise of its rights under this Agreement.
Retargeter will promptly notify the Advertiser of any threat of a claim that Retargeter becomes aware of and that may give rise to a request for indemnification hereunder.
Advertiser warrants that: (a) Advertiser has authorized the person who has executed this Agreement for Advertiser to execute and deliver this Agreement to Retargeter on behalf of Advertiser; (b) information, if any, supplied to Retargeter by Advertiser for inclusion within the Creative will not be procured or produced inconsistently with U.S., foreign, or international law, (c) Advertiser shall conduct business in a manner that reflects favorably at all times on the good name, goodwill and reputation of Retargeter and it’s Affiliates; (d) Advertiser shall avoid deceptive, misleading or unethical practices that are or might be detrimental to the Retargeter, Retargeter’s Affiliates, the Products and the Retargeter IP; and (e) the Advertiser Art shall not include any misleading or deceptive statements.
NEITHER RETARGETER NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES OR SUPPLIERS MAKE ANY WARRANTIES EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH ADVERTISER WITH RESPECT TO THIRD PARTY SOFTWARE, OR ANY PRODUCT, AND RETARGETER.COM AND ITS PARENTS, SUBSIDIARIES, AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
8. Termination and Breach
This Agreement will be for a term of 1 month and will automatically renew on a monthly basis unless and until Advertiser pauses or cancels the campaign.
Retargeter retains the right to terminate this Agreement, in whole or in part, with or without cause, at any time.
Upon termination for any reason, Advertiser will remain liable for any amount due for services delivered by Retargeter and Advertiser’s obligation to pay will survive termination of this Agreement. Advertiser understands that the amount of time required to terminate a campaign is directly tied to settings found in their account and termination may take as long as 30 days from the date of notice. Advertiser will be responsible for any additional fees incurred during this period. Any cancellation notice will be based on the date the written notice was received by Retargeter.
9. Intellectual Property
ReTargeter Services. ReTargeter shall own and retain all right, title, and interest in and to the ReTargeter Services (except for any licensed content and software components included therein). Advertiser agrees not to reverse engineer, decompile, disassemble, copy, alter, modify, or create derivative works of the ReTargeter Services or otherwise use the ReTargeter Services in any way that violates the use restrictions contained in this Agreement. Except as explicitly set forth herein, ReTargeter does not grant to Advertiser any license, express or implied, to the intellectual property of ReTargeter or its licensors. Advertiser further acknowledges and agrees that any information regarding the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of the ReTargeter Service is considered
Confidential Information of ReTargeter.
Advertiser Products. Advertiser (or its licensors) shall own and retain all right, title, and interest in and to its products and the Creatives. Except as explicitly set forth herein, Advertiser does not grant to ReTargeter any license, express or implied, to the intellectual property of Advertiser or its licensors.
Derived Data. Advertiser shall own and retain all right, title, and interest in and to any data derived from its use of the ReTargeter Service (collectively, the “Derived Data”); provided, however, that Advertiser hereby grants to ReTargeter a worldwide, royalty-free, non-exclusive license to use (i) Derived Data for the purpose of providing the ReTargeter Services, (ii) data generated as a result of Advertiser’s use of the ReTargeter Service solely for purposes of maintaining and improving the ReTargeter Services and (iii) non-identifiable aggregate data regarding Advertiser’s use of the ReTargeter Service compiled by ReTargeter solely for marketing purposes.
Advertiser-Provided Data. Except as otherwise set forth below,, Advertiser shall retain all right, title and interest in and to all Creatives, graphics, images, files, data and other information transmitted by Advertiser to ReTargeter in connection with its use of the ReTargeter Service (collectively, the “Advertiser-Provided Data”), provided, however, that Advertiser hereby grants to ReTargeter a worldwide, royalty-free, non-exclusive license to use the Advertiser-Provided Data for the purposes of fulfilling its obligations hereunder. ReTargeter may not use the Advertiser-Provided Data for any other purpose without the prior express written consent of Advertiser.
Advertiser Logos and Designs. Advertiser shall retain all right, title and interest in and to all of Advertiser’s trademarks, tradenames, service marks, logos, promotional graphics and related marketing designs (collectively, the “Advertiser Art”), provided, however, that Advertiser hereby grants to ReTargeter (a) a worldwide, royalty-free, non-exclusive, non-transferable license to use, reproduce and publicly display the Advertiser Art, as well as Advertiser’s corporate and/or trade name during the term set forth in the Order, for purposes of performing the ReTargeter Services and fulfilling its obligations hereunder, and (b) a worldwide, royalty-free, non-exclusive, non-transferable (except in connection with our change in control) and perpetual license to use, reproduce and publicly display the Advertiser’s corporate and/or trade name to market ReTargeter’s products and services to third parties.
Advertiser must not assign, license, sublicense, or otherwise transfer any rights or obligations under this Agreement without the prior written consent of ReTargeter. Any such transfer will be void and without effect, and may constitute breach of this Agreement. Notwithstanding these provisions, rights and obligations under this Agreement may be transferred in the event that Advertiser or ReTargeter is involved in a merger or an acquisition. Such transfer will only be effective if made to the surviving or acquiring company.
All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and delivered to the other party.
Unless otherwise specified, this Agreement may only be modified, or any rights under it waived, by a written document executed by Retargeter and Advertiser.
This Agreement will be interpreted, construed and enforced in all respects in accordance with laws of the State of California, without regard to the state or country of incorporation or operations of Advertiser, or activity of either party in accordance with this Agreement. Advertiser hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of California and the federal courts situated in San Francisco County in the State of California in connection with any dispute arising under this Agreement.
In the event that any provision of this Agreement is held by a court of law or other government agency to be void, voidable, or unenforceable, the remaining provisions will remain in full force and effect.
The Confidentiality, Warranties, Limitation of Liabilities. and Indemnification provisions will survive any termination or expiration of this Agreement.
This Agreement, in conjunction with the Order, sets forth the entire agreement between Advertiser and Retargeter and supersedes any and all prior and contemporaneous agreements (whether written or oral) of Retargeter and Advertiser with respect to the subject matter set forth.