1. “Ad” or “Advertisement” means a commercial notice, announcement or message made in a public medium to an advertiser’s customers or prospective customers to promote a person, entity, brand, product, service, or event.
2. “Additional Terms and Conditions” means any additional terms and conditions specified by BIDSCUBE from time to time for certain Services and attached to an applicable Order or made available to the Customer.
3. “Ad Technologies” means, collectively, digital advertising technologies that include advertising tags (such as pixels, clear GIFs and similar methods), cookies, device identifiers or other identifiers and similar technologies.
4. “Affiliate” of a party means an entity that, directly or indirectly through one or more entities, controls, is controlled by or is under common control with that party, where “control” means the possession, direct or indirect, of the power to direct the management and policies of such party, whether through the ownership of at least fifty percent (50%) of the voting interest of such party, through contractual provisions, or otherwise, and includes that entity’s officers, directors, agents, employees, successors and assigns.
6. “Customer”, “you” and “your” means the individuals or organization(s) identified in the SA and/or the applicable Order, that are responsible for payment to BIDSCUBE pursuant to the Agreement.
7. “Customer Data” means all campaign data collected by BIDSCUBE hereunder on behalf of or received from Customer, its advertisers or the agencies representing Customer, including any data that Customer, its Affiliates, or any third party vendors or partners on Customer’s behalf may disclose or submit to BIDSCUBE and any and all Customer Reports; provided however, Customer Data does not include Non-Proprietary Data, even if such data is identical to a portion of data comprising Customer Data. References to Customer Data include Customer Personal Data (as defined in Section 6.2) unless Customer Personal Data is specifically excluded from SA and/or Order.
8. “Customer Material(s)” means any Advertisement, creative, content, data, information or material of any kind created, managed, or delivered by or on behalf of Customer or its Third Party Users using the Services, and includes, without limitation, any creative works, content, data, information, media plan or material of any kind referenced by or accessed via an Advertisement, such as by a URL or other method.
9. “Customer Report” means any report or summary prepared for Customer in connection with the Services containing information about user activity or engagement with Advertisements.
10. “Fees” means the fees or rates for the use of the Services as set forth in each Order.
11. “Intellectual Property Rights” means all rights including future rights in inventions, patents, designs, copyrights, trademarks, service marks, databases and topography rights (whether or not any of those is registered and including applications for registration of the foregoing, renewals, extensions, continuations, divisions and reissues) together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any others which may subsist anywhere in the world.
12. “SA” means any Services Agreement or similar contractual agreement entered into between you and BIDSCUBE, including all schedules and attachments thereto, as amended from time to time.
13. “Non-Proprietary Data” means data that is generated or obtained by BIDSCUBE in connection with the Services that may include Personal Data as defined by applicable laws, and which BIDSCUBE processes as a co-controller. Non-Proprietary Data includes data included in a HTTP header or HTTP response, such as user agent strings and time stamps; IP addresses; URLs not provided by or on behalf of Customer; and persistent and non-persistent identifiers, such as session IDs, cookie IDs, cache-based IDs, mobile advertising identifiers and device IDs.
14. “Order” means an ordering document for Services that is signed by Customer or submitted to BIDSCUBE by means of an online click-thru and is accepted by BIDSCUBE, which may include, without limitation, an order, statement of work, schedule, attachment, or insertion order, as amended from time to time.
15. “Payment Terms” means the payment terms set forth in the applicable Order.
16. “Platform(s)” means any of the BIDSCUBE service platforms accessible via the Internet for the provision and use of the Services, including any administration websites through which BIDSCUBE provides access to such platforms and all software (including source and object code), updates, enhancements, documentation or other materials (excluding Customer Materials) in or related to the platforms that BIDSCUBE makes available in the course of providing the Services.
17. “Privacy Rules” means, to the extent each is applicable: (i) the requirements of any privacy and data protection laws, treaties, inter-governmental agreements, and regulations to which a party is subject in the conduct of its business; (ii) with respect to all processing of personal data relating to individuals in the European Economic Area by or on behalf of a party to this Agreement in, or transfer of personal data to, the United States of America, the EU Standard Contractual Clauses set forth below in Section 16; (iii) the following digital advertising industry rules to the extent applicable to the conduct of a party’s business in the territories where such rules apply: (a) all United States Federal Trade Commission (“FTC”) rules and guidelines regarding the collection, use and/or disclosure of information from or about a unique user of a website, application and/or mobile website and/or the device associated with such user; (b) the California Consumer Privacy Act (CCPA), as amended; (c) all enacting legislation of European Union member states of directives of the European Parliament and Council related to the processing of personal data or the storage of or access to information stored on an individual person’s computing equipment, including mobile devices; (d) the advertising industry self-regulatory codes and principles promulgated by the Digital Advertising Alliance (“DAA”), and the European Interactive Digital Advertising Alliance (“EDAA”), as each such rules, guidelines, codes or set of principles may be amended from time to time by the promulgating entity or any successor entity; (iv) any other relevant FTC, DAA, or EDAA code or principles relating to the collection and use of data obtained from individual persons for advertising purposes; and (v) any amendments, modifications, extensions, supplements or replacements of or to any of the foregoing. For the purposes of the descriptions in the Standard Contractual Clauses as between BIDSCUBE and Customer, BIDSCUBE agrees that it is a “data importer” and Customer is the “data exporter” under the Standard Contractual Clauses (notwithstanding that Customer may be located outside the EEA and may itself be a Processor acting on behalf of third party Controllers).
18. “Services” means, collectively, the products and services specified in the SA or the applicable Order, which may include, without limitation: (i) provision of digital advertising solutions or services in or through any Platform; (ii) professional, creative, media buying or selling and related trading services for agencies and their customers using BIDSCUBE professional services, any Platform, or the technology and services of third party service providers and BIDSCUBE alliances; and (iii) the data, products and services of third parties that BIDSCUBE may make available to Customer from time to time.
19. “Site(s) Content” means all materials, data, images, texts, sounds, information or other content contained in or around and/or linked to any Site (as defined in Section 6.9).
20. “BIDSCUBE”, “we” and “us” means the BIDSCUBE.
21. “Term” has the meaning given to such term in the applicable Order.
22. “Territory of Domicile” means Customer’s territory of domicile as set in the SA or the applicable Order.
23. “Third Party User” means any third party contractor, client, advertiser, agency, or publisher, as applicable, that accesses and uses the Services through Customer’s Account (as defined in Section 3.1).
- Ordering and Use of Services.
2. Subject to payment by Customer to BIDSCUBE of the Fees as set in the applicable Order and pursuant to Section 3, BIDSCUBE will make the Services available to Customer (and its Third Party Users, as applicable) in accordance with the terms of this Agreement. Notwithstanding the foregoing, Customer acknowledges and agrees that certain Services, including, without limitation, professional, creative, media buying, trading or third party services, may be subject to Additional Terms and Conditions which will be provided or referenced in the applicable Order.
3. BIDSCUBE does not pay for any suggestions regarding the Services, or any improvement to processes, procedures, marketing or any other matter (collectively “Suggestions”). Any Suggestions that the Customer submits to BIDSCUBE becomes the property of BIDSCUBE. BIDSCUBE will not (i) compensate the Customer for any such Suggestion; (ii) have any obligation of confidentiality with respect to any such Suggestion; or (iii) be liable to the Customer for any use or disclosure of any such Suggestion. Customer grant BIDSCUBE a royalty-free, irrevocable, unrestricted, non-exclusive, sub-licensable, assignable, worldwide license to use, modify, copy, sublicense, transmit, publish, create derivative works from, publicly perform and display any Suggestion for any purpose, commercial or otherwise, without compensation or liability to the Customer or to any third party.
- Access to Platform and Account.
1. Customer may access certain Services through an administrative website or, subject to Section 3.5, an application programming interface (“API”) for the Platforms maintained and controlled by BIDSCUBE. For access to the Platforms, BIDSCUBE will provide Customer with one or more logins and passwords for access to Customer’s account and corresponding administrative controls (“Customer’s Account”) by authorized personnel of Customer and/or Third Party Users (“Customer’s Representatives”). In order to use any Platform, Customer will, and will ensure that Customer’s Representatives represent, warrant and covenant that they will, provide BIDSCUBE with accurate, truthful and complete registration information and agree to the terms of this Agreement and any other Additional Terms and Conditions applicable to each Platform that BIDSCUBE may otherwise reasonably require. Upon acceptance of any application made by Customer, each of Customer’s Representatives will be assigned with a user name and password that will allow access to the applicable Platform, and will become a registered user. Customer will ensure that each of Customer’s Representatives that is provided registered user access to any Platform keeps its registration information accurate and up-to-date and does not share its password or registered user name with any third party except as otherwise set forth in this Agreement, and Customer agrees that any failure by any Customer Representative to do so will constitute a breach of this Agreement by Customer, which may result in immediate termination of Customer’s Account. Customer will immediately notify BIDSCUBE in writing of any change in authorization, any unauthorized use of any Customer’s Account or any other account-related security breach of which it becomes aware. Upon termination of this Agreement for any reason, BIDSCUBE will have the right to disable and delete each Customer Representative’s access to Customer’s Account immediately and to delete all Customer Data thirty (30) days after termination or expiration of this Agreement.
2. BIDSCUBE reserves the right to suspend or delete any account in its sole discretion for any reason. If BIDSCUBE suspends or deletes Customer’s Account: (i) BIDSCUBE is not obligated to provide the Customer with a reason for its actions; and, (ii) BIDSCUBE will refund the full unused balance remaining in the Customer’s Account, if any, within 30 days of receiving written instructions from the Customer as to where to refund the balance. If BIDSCUBE deletes Customer’s Account, the Customer’s right to access the Services and use any applicable Platform shall immediately terminate. Customer will not be permitted to open a new account. If BIDSCUBE suspects that the Customer is operating, or associated with, another account (based on its analysis of subscriber data, account content and other information), BIDSCUBE may suspend or delete such ‘related’ account as well.
3. BIDSCUBE will use commercially reasonable efforts to make the applicate Platform accessible to Customer 24 hours per day, 7 days per week, subject to any downtime for maintenance, updating and repair. Notwithstanding the foregoing, Customer acknowledges and agrees that BIDSCUBE will have no responsibility for Customer’s inability to use the Services or access any Platform due to Internet or other network interruption, communications failure, server downtime or other force majeure event.
4. The internet is an inherently insecure medium and the transmission of data over the internet (such as sending an email or logging onto a website) is subject to possible loss, interception or alteration while in transit. Accordingly, BIDSCUBE does not assume any liability for any damage the Customer may experience or costs it may incur as a result of any loss, interception or alteration of transmissions over the internet.
5. If Customer authorizes BIDSCUBE to set up API access under Customer’s Account: (a) Customer’s use of the API is deemed to be a use of the applicable Platform and is subject to the terms of this Agreement and any Additional Terms and Conditions BIDSCUBE may require regarding API use; (b) BIDSCUBE will provide access to the API in accordance with Customer’s written instructions and any additional usage terms set forth in the Order; (c) Customer acknowledges and agrees that BIDSCUBE’s only obligations with respect to Customer and/or any Third Party User provided access to BIDSCUBE’s API (“3rd Party API User”) are those specifically undertaken by BIDSCUBE in the Order and BIDSCUBE otherwise has no responsibility or liability for Customer’s or any 3rd Party API User’s performance or obligations under any separate agreement that may exist among Customer, any of Customer’s clients and any 3rd Party API Users; (d) Customer is solely responsible for obtaining any 3rd Party API User’s written agreement to any Additional Terms and Conditions required for access to the API and returning a copy thereof to BIDSCUBE; and (e) BIDSCUBE may suspend providing API access without liability to Customer or any 3rd Party API User, or any of their respective Affiliates or clients, if BIDSCUBE believes, in its sole discretion, that the receipt or processing of any Customer Data via the API violates any Privacy Rules or otherwise may result in liability for BIDSCUBE or any of its Affiliates or any of their respective customers.
- Limited Rights; Ownership.
1. BIDSCUBE hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), and limited right for Customer to access and use the Platform specified in the Order in accordance with this Agreement solely during the Term and for the sole purpose of using the Services for its internal business purposes. Except as expressly permitted by this Agreement, Customer may not, directly or indirectly or by itself or through any other person or entity, use, rent, lease, sell, transfer (by sublicense, assignment, operation of law, change in control or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the applicable Platform. Moreover, Customer will not (and will ensure that Customer’s Representatives do not) reverse engineer, decompile, or otherwise attempt to discover the source code for the applicable Platform or any of the Services. All rights not expressly assigned or licensed in this Agreement are reserved by BIDSCUBE in full.
2. Except as expressly provided herein, BIDSCUBE has and will have the sole and exclusive ownership of all right, title and interest in and to all the Platforms and all applicable Services and all Intellectual Property Rights in applicable Platform and Services, any enhancements thereto, any documentation or other materials regarding the use thereof and related thereto, any machine learning and the results and outputs of such machine learning that occur prior to, during, or after Customer’s use of the Services, and any BIDSCUBE proprietary data provided to Customer by BIDSCUBE in whatever form or media (collectively, “BIDSCUBE Intellectual Property”). Neither this Agreement, nor anything contained herein, will be construed as a sale of any Platform or any of the Services or any Intellectual Property Right or any other BIDSCUBE Intellectual Property or any proprietary right or title therein or thereto.
3. If any deliverable to Customer produced by BIDSCUBE’s Services includes BIDSCUBE Intellectual Property, then BIDSCUBE will remain the sole and exclusive owner of such included BIDSCUBE Intellectual Property, and BIDSCUBE grants Customer only a non-exclusive, perpetual, worldwide, royalty-free license to use such BIDSCUBE Intellectual Property, for any purpose, including to sell, sublicense, disclose, publicly display, and create derivative works from such BIDSCUBE Intellectual Property, but solely as incorporated into or embedded in such deliverables and not separately therefrom. Subject to the preceding sentence, Customer will own all right, title and interest in and to such deliverables, including the Intellectual Property Rights therein.
4. As between BIDSCUBE and Customer, Customer has and will have the sole and exclusive ownership of all right, title and interest in and to the Customer Materials, Customer Data, and the Site Content where applicable, and all Intellectual Property Rights in the same, except for any BIDSCUBE Intellectual Property embedded therein.
5. Customer grants BIDSCUBE a non-exclusive license during the Term to use, copy, modify, process and distribute Customer Materials and Customer Data solely for the purpose of providing the Services in accordance with this Agreement and subject to its terms.
6. Customer agrees that BIDSCUBE may use and disclose certain data, including Customer Data and Non-Proprietary Data, derived from Customer’s use of the applicable Platform and Services (assuming no user opt-out of such use has been communicated to BIDSCUBE, including as provided in Section 6.7) to create aggregated data and statistics about the Services and its features, which BIDSCUBE may provide to others, including BIDSCUBE’s customers, potential customers and the general public, provided that such aggregated data and statistics do not contain any Customer Personal Data (as defined in Section 6.2) or identify any living individual, Customer, Customer’s clients, or any of their respective products or brands. Customer further acknowledges that BIDSCUBE will cookie-match between cookies used by BIDSCUBE and other cookies deployed by BIDSCUBE, in order to leverage online segment data for other marketing channels.
7. Customer grants BIDSCUBE a non-exclusive license during the Term to use its and its Third Party Users’, as applicable, name and trademarks in marketing materials, the customer ad showcase area of the applicable Platform, and customer lists; provided, that Customer has the right to notify BIDSCUBE in writing if it does not agree to any of the foregoing uses of its name and trademarks.
8. “BIDSCUBE”, “BIDSCUBE COMMUNITY”, “BIDSCUBE.com” and BIDSCUBE’s logos are, and remain, trademarks of BIDSCUBE, its affiliated companies, and/or its licensors; you may not copy, imitate or use any of these without BIDSCUBE’s prior written consent.
- Confidential Information.
1. Any information provided hereunder by either party which is clearly marked as “confidential” or designated to be confidential by the terms of this Agreement, including, in particular, the terms and Fees set forth in the SA and any Orders (“Confidential Information”) will not be used, disclosed or reproduced by the other party without the express written consent of the party providing such information, other than for the performance of such party’s obligations under this Agreement. “Confidential Information” includes all information furnished by or on behalf of either party to the other party, whether furnished before or after the date of this Agreement and regardless of the form in which it is or was communicated or maintained, that is marked as “confidential” or that, from all of the circumstances, the receiving party knows or has reason to know or could reasonably be expected to believe that the disclosing party intended or expected the secrecy of such information to be maintained, that contains or otherwise reflects information concerning the disclosing party, including, without limitation, technical data, know-how, unpublished patent applications, research, product plans or proposals, product applications, inventions, experimental results, trade secrets, processes, designs, drawings, business plans or proposals, implementation strategies, methods of operation, standard operating procedures, marketing information, presentations, programs and strategies, pricing information, promotional information and techniques, analytical procedures, agreements with or information of third parties, financial information and conditions, and information relating to engineering, markets, suppliers or vendors, services, customers, personnel data and marketing, and any other confidential information concerning the business and affairs of the disclosing party, and will include all notes, studies, reports, memoranda and other documents prepared by the receiving party or its representatives that contain or reflect any Confidential Information. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or failure to act by the receiving party; (b) is lawfully in the possession of the receiving party at the time of disclosure, as demonstrated by the receiving party’s written records immediately prior to the time of disclosure; (c) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on its disclosure; (d) is required to be disclosed by a pplicable law or regulation; provided, that the receiving party, to the extent legally permitted, will promptly notify the disclosing party of such request, furnish only the minimum portion of Confidential Information that the receiving party is advised by legal counsel is legally required to be furnished, and assist the disclosing party, if requested, in obtaining a protective order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information as is required to be disclosed.
- Data Protection and Privacy.
1. BIDSCUBE and Customer (and its Third Party Users) each represents and warrants that it will at all times comply with the requirements of any applicable Privacy Rules and will refrain from engaging in any behavior that is reasonably likely to render the other party in breach of the Privacy Rules.
2. To the extent that BIDSCUBE processes personal data about any natural person (“Personal Data”, which may also be referred to as “personally identifiable information” or “personal information” by applicable laws) supplied or collected by or on behalf of Customer (“Customer Personal Data”) in the course of providing the Services.
4. BIDSCUBE will have in place and maintain throughout the Term appropriate technical and organizational measures to prevent accidental or unauthorized destruction, loss, alteration or disclosure of Customer Data. Customer acknowledges that BIDSCUBE shall have the right to delete Customer Data in accordance with BIDSCUBE’s data retention policies and to disclose, modify or delete Customer Personal Data in accordance with this Agreement or as required by Privacy Rules.
5. Customer authorizes BIDSCUBE to subcontract processing of Customer Data under this Agreement to one or more third parties provided that BIDSCUBE: (a) complies with the Privacy Rules; (b) flows down its obligations to protect the Customer Data to any subcontractor it appoints; and (c) will remain responsible for any failure to comply with the Privacy Rules by any subcontractor it appoints to process Customer Data.
9. Customer will not append any third party tags to BIDSCUBE’s tags, nor will Customer allow any third party tracking or tagging (collectively “Third Party Tags”) through the Platform unless any provider requesting to implement Third Party Tags is in full compliance with this Section 6 and the Privacy Rules, including, without limitation, by presenting users with notice and choice to opt-out of data collection and processing in connection with such Third Party Tags. Customer will provide BIDSCUBE and any client it represents, where applicable, with notice of any Third Party Tags Customer wishes to implement in the Platform. BIDSCUBE reserves the right to validate any Third Party Tags or provider thereof for compliance with this Section 6 and the Privacy Rules, and for authenticity, and is under no obligation to allow the implementation of Third Party Tags. BIDSCUBE may create lists of providers of Third Party Tags who are certified to append Third Party Tags in the Platform, and reserves the right to block any providers who are not validated for compliance; and without derogating from the above, Customer will be solely responsible for any Third Party Tags implemented through the Platform by Customer or any provider or other person authorized to act on Customer’s behalf, including any damage, cost or claim resulting from appending such Third Party Tags.
- Customer Responsibilities.
1. As between the parties, Customer is solely responsible for: (a) all aspects of any Customer Materials created, delivered, or managed through or processed or linked to the Services; (b) all campaign settings, including settings in the Platform designated as “Stop Serving”, as determined and inserted by or on behalf of Customer on the applicable Platform; and (c) all aspects of campaign management including data entry, ads, pricing, budget, maximum number of impressions, flight parameters, pacing, campaign set up and trafficking, targeting constraints, monitoring ad status, advertiser requirements and objectives, and campaign performance. Customer is solely responsible for any conditions, representations or warranties it makes to its advertisers regarding actual or expected campaign performance, and for any make-goods it may issue to advertisers. Customer will conduct (and ensure that its Third Party Users conduct) all of its marketing, business, and other activities related to the Customer Materials and its use of the Services in compliance with local, state, federal and international laws, rules, treaties, inter-governmental agreements and governmental orders, regulations and regulatory codes of practice applicable to its business.
2. Customer represents and warrants that it will not (and will procure that its Third Party Users do not) use the Services in connection with, or to promote campaigns, Advertisements or other Customer Materials or Site Content containing: (a) content that is an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material or discriminatory; (b) content that promotes any illegal or fraudulent activity, including, without limitation, the promotion of gambling where prohibited, illegal substances, software piracy or hacking, or invalid advertising traffic; (c) content that infringes the personal rights or Intellectual Property Rights of any third party; (d) content, links or codes that promote or reference software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware (as defined below), worms, Trojan horses, time bombs, cancelbots, bots or other code that generate fraudulent or invalid advertising traffic, corrupted files or similar software; or (e) content that it knows or reasonably should have known to be false, fraudulent or misleading, including content, links or codes that facilitate the creation or use of fraudulent or invalid advertising traffic. “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly views or collects information; (iii) access computer systems to display or distribute unwanted or illicit advertising, content or software; or (iv) violates the written policies of any advertising exchange or publisher that Customer may have access to through the applicable Platform, as such policies may be updated and published from time to time. Customer shall use a reputable third party Malware detection vendor to scan all ads that are served to websites in connection with Customer’s use of the Services. Without limiting any of its rights under this Agreement, BIDSCUBE may immediately suspend or terminate Customer’s access to the Services without notice and may terminate this Agreement without any liability to Customer, if Customer fails to comply with this Section 7.
3. Customer represents and warrants that: (a) it is a business, not a consumer, and has the rights, authority and any required permission and consent to enter into this Agreement, and, if applicable, that it is acting as an agent for a disclosed principal, its advertiser, and that as such, Customer has the authority as agent to incur the Fees charged by BIDSCUBE for the Services requested on such advertiser’s behalf; (b) neither it nor its Third Party Users are currently the subject of any investigation or prosecution by any governmental or regulatory body or agency that may have a material detrimental effect on users of Customer’s products, services or advertising, or on BIDSCUBE, any of its Affiliates or any of their respective customers; or (c) if it or any of its Third Party Users becomes involved or is named in any investigation or prosecution by any governmental or regulatory body or agency that may have a material detrimental effect on BIDSCUBE or users of BIDSCUBE’s products, services or advertising, then Customer will immediately provide notice to BIDSCUBE of such action, investigation, complaint or other proceeding, in which event BIDSCUBE may terminate this Agreement immediately.
4. Customer represents and warrants that: (a) it and its Third Party Users have all the necessary rights, licenses, consents, waivers and permissions, including, without limitation, from advertisers, publishers, users and other third parties, to allow BIDSCUBE: (i) to store and deliver the Customer Materials and otherwise provide the Services and operate the Platforms on behalf of Customer; (ii) to make any technical or other modifications that it may deem necessary to facilitate the delivery of the Advertisements and related Customer Materials; provided, that BIDSCUBE will not make any amendments to the creative content of any Advertisements or Customer Materials except as requested by Customer; (iii) to use any Customer Data provided to or collected by BIDSCUBE in the provision of the Services for Customer and according to Customer’s or its Third Party Users’ instructions; and (iv) to receive, transfer and process any Customer Data from or to any third party according to Customer’s or its Third Party Users’ instructions, whether by API, FTP or other data transfer method; (b) neither Customer nor its Third Party Users, nor any of their respective users, will use the applicable Platform or any of the Services in a way or for any purpose that infringes or misappropriates any third party’s Intellectual Property Rights or personal or other proprietary rights or in order to harass, abuse, or harm another person; (c) it will ensure that the Customer Materials, the contents of such Customer Materials, the Site Content and any data provided by, or delivered on behalf of, Customer or any Third Party Users to BIDSCUBE, and Customer’s and its Third Party Users’ promotional and marketing materials and activities in connection with their use of the applicable Platform or Services, will not be in violation of any third party’s rights, including Intellectual Property Rights, and will not be defamatory, fraudulent, obscene, misleading or otherwise illegal; (d) it will notify BIDSCUBE of any errors in any Customer Materials and any complaints or claims made in respect of any Customer Materials as soon as the same comes to its attention; and (e) if BIDSCUBE considers, in its sole discretion, that any Customer Materials breaches any of the requirements set forth in this Section 7, or may subject BIDSCUBE to material adverse risks, and BIDSCUBE requests that such Customer Materials be removed or amended, then Customer will withdraw such Customer Materials from the applicable Platform or amend such Customer Materials to BIDSCUBE’s satisfaction.
5. Customer will ensure that it and any Third Party Users comply with this Agreement. BIDSCUBE may audit Customer’s use of the Services and observe all of Customer’s activity on the applicable Platform. Customer will promptly notify BIDSCUBE of any suspected or alleged breach of this Agreement and will cooperate with BIDSCUBE regarding: (a) any investigation by BIDSCUBE of any suspected or alleged violation of this Agreement; and (b) any action by BIDSCUBE to enforce the terms and conditions of this Agreement. BIDSCUBE may suspend or terminate Customer’s or Third Party User’s access to the Services and/or applicable Platform upon notice to Customer if BIDSCUBE determines in its reasonable discretion that Customer or Third Party User has breached this Agreement.
6. Customer agrees to indemnify, defend, and hold harmless BIDSCUBE, its subsidiaries, Affiliates and related entities, and their respective officers, directors, employees and agents from and against any and all losses, costs, damages or liabilities, including, without limitation, reasonable legal fees, costs and expenses, arising out of any third party claim or action related to Customer’s or any Third Party User’s (i) breach of any of the obligations and warranties set forth in this Section 7, or any other representations, warranties, terms, conditions or obligations of Customer as provided in this Agreement; (ii) gross negligence, willful misconduct or fraudulent actions; and (iii) violation or otherwise misappropriation of the Intellectual Property Rights of such third party in violation of this Agreement. The foregoing obligations are conditioned on BIDSCUBE: (a) notifying Customer promptly in writing of such action; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) reasonably cooperating with the Customer, at the Customer’s expense, in the defense of such claim; and (d) giving the Customer the right to control the defense and settlement of any such claim, except that the Customer shall not enter into any settlement that affects BIDSCUBE’s rights or interest without BIDSCUBE’s prior written approval. BIDSCUBE reserves its right prior to and during the notice period to file any motion, answer or other pleading and to take any other action that BIDSCUBE shall deem necessary or appropriate to protect its interests.
- BIDSCUBE Responsibilities
1. BIDSCUBE represents and warrants that: (a) it is duly authorized to enter into this Agreement and provide the Services hereunder; (b) it will perform the Services in a diligent and workmanlike manner consistent with applicable industry standards; (c) the Services will perform substantially in accordance with the latest version of documentation as made to any settlement that affects Customer’s rights or interest without Customer’s prior written approval. Customer shall have a right prior to and during the notice period to file any motion, answer or other pleading and to take any other action that Customer shall deem necessary or appropriate to protect its interests. If the applicable Platform or Services become, or in BIDSCUBE’s sole opinion are likely to become, the subject of an infringement claim, BIDSCUBE may, at its option and expense: (i) procure for Customer the right to continue using the applicable Platform or Services; (ii) replace or modify the applicable Platform or Services so that they become non-infringing; or (iii) accept return of any deliverables provided as a result of the Services, terminate this Agreement, in whole or in part, as appropriate, upon written notice to Customer and refund Customer any Fees pre-paid in respect of the Services upon such termination. Notwithstanding the foregoing, BIDSCUBE will be relieved of its obligation under this Section 8.2 to the extent that any third party action is based upon: (A) any Customer Materials; (B) any use of the Platform or Services not in accordance with this Agreement; (C) any use of the Services in combination with products, equipment, software, or data not supplied by BIDSCUBE if such infringement would have been avoided if not for the combination with such products, equipment, software, or data; (D) any use of any release of the Platform or Services other than the most current release made available to Customer; or (E) any modification of the Platform or Services by Customer, its agents or subcontractors. THIS SECTION 8.2 STATES BIDSCUBE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY THIRD PARTY CLAIMS OF INFRINGEMENT.
1. All Fees payable under this Agreement by Customer will be made in accordance with the Payment Terms, and are exclusive of any applicable taxes (except for taxes on BIDSCUBE’s net income) payable in connection with the Services or the use of the applicable Platform, including, without limitation, VAT or any relevant local sales taxes, for which Customer will be responsible. Unless stated otherwise in the applicable Order, all Fees shall be due within 30 days of the invoice date. Non-payment of any BIDSCUBE invoice in accordance with the Payment Terms and this Agreement will be a material breach of this Agreement. Unless otherwise stated in the applicable Order, all Fees will be charged in U.S. dollars. If Customer pays the Fees in currency other than U.S. dollars, the payment will be exchanged at the rate available to BIDSCUBE at the time. Customer is responsible for confirming the accuracy of all information it provides for each payment (such as contact information, payment amounts, credit card numbers and expiry dates, and wire information, as applicable).
2. If Customer fails to pay any amount payable by it under this Agreement in accordance with the Payment Terms, BIDSCUBE may charge Customer interest on the overdue amount (payable by Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1.5% per month or the highest rate allowed by law, whichever is less. Such interest will accrue on a daily basis and be compounded on a monthly basis. Customer will also be responsible for payment of all reasonable expenses (including attorneys’ fees and costs) incurred by BIDSCUBE in collecting any overdue amounts from Customer.
1. EXCEPT AS EXPRESSLY generally available in the applicable Platform or in an Order; (d) its provision and operation of the Services is in compliance with all applicable local, state, federal and international laws, rules, treaties, inter-governmental agreements and governmental orders, regulations and regulatory codes of practice; and (e) there are no actions, suits or proceedings, pending or threatened, that could reasonably be expected to have a material adverse effect on BIDSCUBE’s ability to fulfill its obligations under this Agreement.
2. BIDSCUBE agrees to indemnify, defend, and hold harmless Customer, its subsidiaries, its Affiliates, and their respective officers, directors, employees and agents from and against any and all losses, costs, damages or liabilities, including reasonable legal fees, costs, and expenses, arising out of or related to any third party action to the extent it is based upon a claim that any Platform or Services, or use thereof by the Customer in accordance with and subject to the limitations set forth in this Agreement, infringes any Intellectual Property Right of a third party. The foregoing obligations are conditioned on Customer: (a) notifying BIDSCUBE promptly in writing of such action; (b) giving BIDSCUBE sole control of the defense thereof and any related settlement negotiations; and (c) reasonably cooperating with BIDSCUBE, at BIDSCUBE’s expense, in the defense of such claim; and (d) giving BIDSCUBE the right to control the defense and settlement of any such claim, except that BIDSCUBE shall not enter i ET FORTH IN THIS AGREEMENT, THE PLATFORM, AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND BIDSCUBE DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PLATFORM OR THE SERVICES AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, BIDSCUBE DISCLAIMS ALL IMPLIED PROMISES WITH RESPECT TO THE PLATFORM AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY PROMISES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
3. BIDSCUBE WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS OR INACCURACIES IN ANY CUSTOMER MATERIALS OR SITE CONTENT; (B) SERVICE INTERRUPTIONS DUE TO FACTORS REPRESENTING INHERENT RISKS ASSOCIATED WITH THE USE OF ELECTRONIC COMMUNICATIONS, INCLUDING NETWORK INTERRUPTIONS (INCLUDING THE INTERNET), COMMUNICATIONS FAILURES, THIRD PARTY SERVER DOWNTIME, POWER OUTAGES OR SYSTEM FAILURES; OR (C) ANY UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF CUSTOMER’S OR ANY THIRD PARTY USER’S CUSTOMER MATERIALS, SITE CONTENT OR OTHER MATERIALS, DATA, IMAGES, SOUNDS, TEXT INFORMATION OR CONTENT.
4. BIDSCUBE MAY DISCONTINUE ANY ASPECT OF THE PLATFORM OR THE SERVICES, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE PLATFORM OR THE SERVICES, AT ANY TIME. BIDSCUBE ALSO DOES NOT IN ANY WAY MAKE ANY PROMISES THAT THE PLATFORM OR THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED MANNER, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS. IN ADDITION, BIDSCUBE MAKES NO PROMISES THAT THE PLATFORM OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE PLATFORM OR THE SERVICES.
5. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER CUSTOMER NOR ITS THIRD PARTY USERS HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE ON ANY PROMISES (WHETHER INNOCENT OR NEGLIGENT) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
- Limitation of Liability.
1. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY THIRD PARTY) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, COSTS OF SUBSTITUTES, LEGAL FEES AND COURT COSTS), EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE.
2. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO BIDSCUBE BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST OF ANY CLAIMS IS MADE IN CONNECTION WITH THIS AGREEMENT.
3. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 11 AND ELSEWHERE IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMISSABLE AT LAW, BUT NEITHER PARTY WILL EXCLUDE OR LIMIT LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS ACTING IN THE COURSE OF THEIR DUTIES; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) BREACH OF SECTION 4, 6 OR 7 BY CUSTOMER OR THE BREACH OF SECTION 5 BY EITHER PARTY; (D) INDEMNIFICATION SET FORTH IN SECTION 7.6 AND 8.2; OR (E) ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
- Term and Termination.
- Force Majeure.
1. Neither party will be responsible for delay or failure in performing obligations under this Agreement resulting from the occurrence of an event beyond the control of such party. Such force majeure events include, but not limited to, acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, flood, earthquake, explosion, embargo, acts of terrorism, power failure, equipment failure, industrial or labor disputes or controversies, acts of any third party data provider(s) or other third party information provider(s), third party software, or communication method interruptions.
2. Any party that wishes to invoke an event as set forth above will promptly notify the other party of the occurrence of the force majeure event. Should the force majeure event continue for more than thirty (30) days, the party claiming the force majeure event will have the right to terminate this Agreement with immediate effect by giving written notice to the other party.
3. In the event that Customer exercises its right to terminate this Agreement under this Section 13, it will immediately pay to BIDSCUBE all Fees incurred, due and payable to BIDSCUBE under the terms of this Agreement up to the effective date of such termination.
3. BIDSCUBE may provide notices to Customer, at BIDSCUBE’s option, by email to the email address provided by Customer to BIDSCUBE, by mail to the postal address provided by Customer to BIDSCUBE, or by posting on the applicable Platform or any BIDSCUBE website to which Customer has access in connection with this Agreement. It is Customer’s responsibility to ensure that the email address and any other contact information it provides to BIDSCUBE is updated and correct at all times during the Term. Changes to Customer’s contact information should be sent to Customer’s designated BIDSCUBE service representative.
4. Customer and BIDSCUBE are independent contractors and nothing in this Agreement will give Customer the right, power or authority to create any obligation or responsibility on behalf of BIDSCUBE. Except as otherwise set forth in this Agreement, neither Customer nor BIDSCUBE will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that BIDSCUBE’s Affiliates will be third party beneficiaries of this Agreement and will be entitled to directly enforce, and rely upon, any provision in this Agreement that confers a benefit on, or rights in favor of, BIDSCUBE or any of its Affiliates.
5. Customer may not assign, sublicense, or transfer this Agreement or any right or duty under this Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14 will be void and of no force or effect. BIDSCUBE and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, such as to BIDSCUBE Affiliates.
6. No waiver of any right, power, condition or remedy is effective unless given in writing and signed by the party waiving such right or condition. No failure or delay on the part of a party in exercising any right, power, condition or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power, condition or remedy preclude any other or further exercise or the exercise of any other right, power, condition or remedy.
7. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of any provision in any other jurisdiction.
8. Any claim against BIDSCUBE and/or its Affiliates will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
10. BIDSCUBE may be subpoenaed by governmental entities or others to provide information relative to your account. BIDSCUBE has no obligation to inform you of any subpoena or response to any subpoena, and you agree that BIDSCUBE will have no liability to you for disclosing information in response to a subpoena.
12. This Agreement and every part of this Agreement is controlled by the English language and if the terms of this Agreement or any part thereof are translated into any language, for convenience or any other reason, the English language version will control and the English language interpretation will prevail with respect to any conflicts of interpretation.
- BIDSCUBE Entity You Are Contracting with in Your Territory of Domicile, Governing Laws, Jurisdiction, Venue, Notices.
1. This Agreement shall be governed by the laws of the England without regard to conflict of laws rules or principles.
2. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT, ANY OTHER AGREEMENT RELATED HERETO OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES, AND THEREFORE, THE PARTIES AGREE THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
3. All notices to BIDSCUBE will be made in writing to BIDSCUBE: Rm 6A, 7/F., Block B, Grand Industrial Building, 159-165 Wo Yi Hop Road, Kwai Chung, N.T. HONG KONG
with a copy via email to email@example.com. Notices should be sent by certified first-class mail, return receipt requested, or a nationally recognized delivery service. Notices will be deemed received based on the delivery date shown on the written delivery confirmation notice.
Last Modified: 13th of September 2021