ADLIVEN CUSTOMER TERMS

Last Updated: December 18, 2017

These Customer Terms (“Customer Terms”) are made between AdLiven Inc. (“AdLiven”) and customer (“Customer” or “You,” either individually or you acting on behalf of the business or organization you represent). By using the AdLiven website or services, you agree to these terms and conditions. If you do not agree to these terms, you may not use this site or services.

AdLiven provides online advertising creative design services, including without limitation, video development, and such other services as Customer may purchase from AdLiven (collectively, the “Services”). You may submit requests for Services to AdLiven for acceptance in written order forms or through an online account with AdLiven (each order represents an “Order Form”). If an Order Form is accepted, AdLiven agrees to provide such Services to Customer subject to the terms and conditions of the Order Form and these Customer Terms (together, the “Agreement”).

AdLiven may update these Customer Terms from time-to-time and post such updated terms on this website and service at www.adliven.com. Please check back at this location for notices of any updates. Your continued use of the AdLiven Platform and/or purchase of Services from AdLiven following the posting of such an update shall constitute acceptance of the updated Customer Terms.

Access to Services

• Access and Authorized Users. Subject to the terms and conditions herein, AdLiven grants Customer and Customer’s employees and other agents (“Authorized Users”) a limited right to access and use the AdLiven website and services at www.adliven.com (the “AdLiven Platform”) solely for the purpose of ordering Services and communicating with AdLiven in relation to such Service. Customer is responsible for ensuring that its Authorized Users comply with the terms and conditions of the Agreement. You will require that your Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized third party. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, and shall immediately notify AdLiven if any user who has access to a user ID is no longer an employee or Authorized User of Customer.
• Restrictions. Customer agrees that Customer will not itself or allow any third party to: (i) reverse assemble, reverse compile, or reverse engineer the AdLiven Platform, or otherwise attempt to discover any software source code or underlying proprietary information; (ii) remove, efface or obscure any copyright notices, logos, or other proprietary notices or legends (whether AdLiven’s, its suppliers or licensors) from the AdLiven Platform or other materials obtained through the Services; (iii) use the AdLiven Platform in any manner which adversely affects AdLiven or its customers, their data or security, or seek to access the data of any third party without AdLiven’s prior written authorization; or (iv) use the Platform or AdLiven Services in any way that does not comply with all applicable laws, restrictions, and regulations of the United States and any applicable foreign jurisdiction.

Services

• Performance. AdLiven agrees to perform the Services in a professional manner consistent with industry norms and standards, and to use commercially reasonable efforts to comply with the guidelines and specifications given by Customer with respect to the Services.
• Use of Subcontractors. Customer agrees that AdLiven has the right to delegate or subcontract the performance of the all or part of the Services and/or operation of the AdLiven Platform to any number of contractors or agents (“Subcontractors”), provided that AdLiven remains responsible for the performance of the Services including the actions of its Subcontractors, and provided further that Subcontractors will be under confidentiality obligations with respect to Services at least as restrictive as those contained in these Customer Terms.
• Creatives; Customer Content. Customer may submit Order Forms for Services to develop specified advertising creative materials (the “Creatives”) via the AdLiven Platform. A request for Service shall also specify the preferred completion date for the Video Creative and other necessary information. To facilitate the development and creation of the Creatives by AdLiven or its Subcontractors, Customer shall provide to AdLiven the content, data, text, audio, images, logos and brand or guidelines together with any other materials specified in an Order Form, reasonably necessary for AdLiven to perform the Services as requested (collectively, “Customer Content”). Customer grants AdLiven and its Subcontractors a limited right and license to reproduce, modify, and use Customer Content solely for the purposes of providing Services to Customer and for no other purpose.

Ownership and Intellectual Property Rights.

a. Ownership of Work Product. As between the Parties, Customer retains all right, title and interest in and to the Customer Content made available to AdLiven and its Subcontractors, including the intellectual property rights therein. Further, provided that Customer adheres to the terms and conditions of the Agreement and upon acceptance of Creatives and complete and full payment of all fees for the Services, then, except with respect to third party images, footages and other stock materials (“Stock Materials”), Customer shall be the owner of the all right, title and interest in and to all original work in Creatives created by AdLiven or its Subcontractors, including any modifications or derivatives made of Customer Content, and all intellectual property rights therein (collectively the “Work Product”). AdLiven agrees to provide reasonable assistance to Customer, at Customer’s request and expense, to secure Customer’s rights in the Work Product, including the execution of all applications, assignments and all other instruments necessary to secure such rights. For the avoidance of doubt, AdLiven does not and cannot transfer ownership of any Stock Materials incorporated into the Creatives; Stock Materials are subject to a license as provided for in subsection (b) below.

b. Stock Materials. Customer agrees that the Work Product created in connection with Services may contain Stock Materials. Subject to the terms and conditions of this Agreement, AdLiven grants Customer a perpetual, non-exclusive, worldwide, non-transferrable, royalty free license to use the Stock Material solely as incorporated in and used with the Work Product for an online digital advertising impression campaign, provided that such use of the Stock Material (i) is only for online advertising purposes and is not an editorial use; (ii) is not defamatory, deceptive, false, misleading, or otherwise a violation of law or the rights of any third parties; (iii) does not depict a person in a way that a reasonable person would find offensive, unflattering or controversial (such as having a sexually transmitted disease or engaging in criminal activity); (iv) does not depict a person to imply the person suffers from a physical or mental infirmity; (v) is not used as a trademark or other brand identifier or to imply any third-party endorsement; (vi) is not in connection with advertisements for pornography, “adult videos,” adult entertainment venues, escort services, or the like; (vii) is not in connection with tobacco products; (viii) is not in connection with advertisements in a political context, such as advertisements for any party, candidate, or elected official, or in connection with any political policy or viewpoint; (viii) is not a stand-alone use of Stock Material apart from the Work Product; or (ix) does not falsely identify another person as the original creator of the Stock Material.  

Customer acknowledges and agrees that use of Stock Materials outside of the foregoing license is prohibited by the Agreement, and such unauthorized use may violate the Intellectual Property rights of the third-party owners of the Stock Materials.

Confidentiality

Any non-public information disclosed by one Party to the other in connection with the Agreement, whether disclosed in writing, orally or by inspection, and which is identified in writing as being “Confidential” or “Proprietary,” or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary or confidential, shall be deemed “Confidential Information.” To the extent a Party discloses Confidential Information (“Disclosing Party”) hereunder to the other Party (“Receiving Party”), the Receiving Party shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not use the Confidential Information, except as necessary for the performance of the obligations under the Agreement. AdLiven may disclose Confidential Information to Subcontractors and its own third party suppliers or service providers only for purposes related to the Services and the AdLiven Platform, and on the condition that AdLiven has entered into confidentiality agreements with such Subcontractors or third parties that are at least as protective of Customer’s Confidential Information as the terms of this Section. Upon request of the Disclosing Party or upon termination of the Agreement, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Confidential Information does not include information that (i) is part of the public domain; (ii) was already known to or in the receipt of the receiving party at the time of disclosure; (iii) was lawfully disclosed to the receiving party by a third party not otherwise subject to confidentiality; or (iv) was independently developed by a party without use of or reference to the other party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to a lawful court order requesting disclosure provided, however, that (a) the receiving party must give prompt notice to the disclosing party, (b) allow, where practical, the disclosing party to seek protection of such Confidential Information, and (c) the receiving party only discloses Confidential Information that is the subject of the order. Each Party’s confidentiality obligations hereunder shall continue for two years following termination of this Agreement.

Representations and Warranties

Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder, and (ii) when executed and delivered by such Party, an Order Form, together with these Customer Terms, will constitute a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

Customer further represents and warrants that the Customer Content and Customer’s specifications and guidelines and intended use for Creatives do not and will not infringe on third-party Intellectual Property rights, or any other third party rights, or represent false or misleading advertising. Customer also represents and warrants that its hardware, software, data and systems do not contain, and will not introduce or transmit, any virus, worm or other routine that could disable, erase or otherwise harm the AdLiven Platform or its users.  

Disclaimer of Warranties

EXCEPT AS OTHERWISE SET FORTH IN THE AGREEMENT, THE SERVICES AND ADLIVEN PLATFORM ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

Exclusion of Damages; Limitation on Liability

EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ADLIVEN SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IT IS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT, SHALL ADLIVEN’S TOTAL LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO ADLIVEN UNDER THE ORDER FORM FOR SERVICES TO WHICH THE CLAIM OR CAUSE OF ACTION RELATES.

Indemnification

Customer shall indemnify, defend and hold harmless AdLiven, its affiliates, and each of their officers, directors, employees, contractors and agents from and against any and all losses, damages, liens, fines, penalties, costs and expenses (including reasonable attorneys’ fees and expenses) or other liabilities (“Losses”), arising out of or resulting from any third-party causes of action, suits or claims (“Claims”) arising out of or relating to (i) any act, error, omission, negligence, willful misconduct, gross negligence or criminal acts of Customer; (ii) the Customer Content or Guidelines; or (iii) failure to comply with applicable laws, rules and regulations, whatever the form those Losses take. AdLiven shall provide Customer with prompt notice of any Losses or Claims arising under the Agreement and promptly tender defense of any Claims to Customer. Customer shall not settle any Claims that would require the payment of money by AdLiven, the admission of fault or responsibility by AdLiven or the obligation of AdLiven to take any action or refrain from taking any action without the express written consent of AdLiven, which AdLiven will not unreasonably withhold or delay. AdLiven reserves the right to participate in the defense of any Claim at its expense and with counsel of its choosing.

Termination

Either Party may terminate the Agreement, including any pending Order Forms, upon written notice to the other Party if such other Party commits a material breach of these Terms and such breach is not cured within the 30-day notice period. Either party may terminate this Agreement for convenience upon prior written notice at such time when no outstanding Order Forms are pending completion of Services. Customer may terminate any Order Form for convenience upon prior written notice, provided that fees due for such Order Form(s) at the time of termination remain due in full, and no pre-paid fees are refundable. Any provisions of the Agreement which state they survive termination or by their nature and intended purpose should survive remain in full force and survive any termination of this Agreement.

General

• Governing Law; Jurisdiction and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. Any cause of action between the Parties shall be brought in a court located in San Francisco County for state court causes of action and in a United States District Court located in the Northern District of California for federal court causes of action. Customer waives any objection on the basis of personal jurisdiction and venue.
• Independent Contractors. Nothing contained in the Agreement shall be intended or construed to create a relationship of principal and agent, employer and employee, franchisor and franchisee, partnership or joint venture between the Parties. Except as contemplated by the Agreement, neither Party shall possess any right or authority to assume or create any obligation or enter into any agreement, whether express or implied, on behalf of or in the name of the other Party hereto or to bind the other Party.
• Entire Agreement; Amendments. These Customer Terms, together with all Order Forms and schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. The Agreement may only be modified by a written agreement and signed by a duly authorized representative of each Party.
• Assignment. Neither Party will assign this Agreement without prior written consent of the other Party, except that either Party may assign this Agreement or transfer any of its rights under the Agreement to a successor in interest pursuant to a transfer of all or substantially all of its business and assets to which this Agreement relates whether by merger, sale of assets, sale of stock or otherwise. The terms of the Agreement will be binding upon a Party’s successors or authorized assignees.
• Severability. If a court of competent jurisdiction finds any provision or term of the Agreement unenforceable, that provision or term will be modified to best effect the Parties’ intent, and all other terms will continue in force.
• Waivers. The failure to exercise any right provided in the Agreement shall not be a waiver of any prior or subsequent rights and only waivers signed in writing by the waiving Party shall be enforceable.
• Force Majeure. A Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including, without limitation, acts of nature, lockouts, acts or war, terrorism, communication line failures and power failures (a “Force Majeure Event”), provided, however, that such delay in performance will last only as long as the Force Majeure Event continues.
• Notices. All notices delivered in connection with the Agreement must be given in writing. Notices will be deemed given as of three days from the postmark date if sent via first class mail to the address of the Party to be notified.

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