Date last updated: February 4, 2016
User Acknowledgment and Acceptance of Terms
You agree to provide accurate, current and complete information about you or any entity on whose behalf you will access the service at the time of registration in order to access the Service. You are solely responsible for maintaining the confidentiality of your User Account and password, and you are responsible for all activities that occur under your User Account by you or any Authorized User of your User Account.
Grant of License; Restrictions.
Grant of License to QuanticMind Platform.
QuanticMind grants Client a worldwide, non-exclusive, non-transferable right and license during the Term to use the Platform. Except as expressly licensed herein, QuanticMind retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, patent and other intellectual property rights) to the Platform, and any and all upgrades, enhancements, modifications or derivative works of the Platform.
Restrictions to Client’s Use Platform.
Client will not, and will not allow any end user or third party under its direction and control to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, technology or algorithms of the Platform by any means whatsoever, or replicate the functionality of the Platform for any purpose; (ii) license, share, lend, host, or otherwise transfer in any manner the Platform to or for the benefit of any third party; or, (iii) disclose any performance information or analysis from any source relating to the Platform. Client will not authorize or permit any unaffiliated third party, including but not limited to direct competitors to QuanticMind, to use the Platform without QuanticMind’s prior written consent, which may be withheld at its discretion. All rights not expressly granted by QuanticMind hereunder are reserved by QuanticMind.
Client User Data.
In order for QuanticMind to provide the Services and Additional Services, QuanticMind may collect information about Client and about visitors to Client’s website (“Client User Data”). All Client User Data is the sole the property of Client and QuanticMind has no ownership rights in any Client User Data. Client User Data includes, without limitation, all sales and marketing information provided by Client to QuanticMind, and all individually identifiable information about visitors to Client’s website, including statistical and demographic information. QuanticMind shall adopt adequate archival procedures to store the Client Data (defined below). In the event of any loss or corruption of Client User Data, QuanticMind shall use its commercially reasonable efforts to restore the lost or corrupted Client User Data from the latest backup of such Client User Data maintained by QuanticMind in accordance with its archival procedures. QuanticMind shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Client User Data caused by any third party. QUANTICMIND’S EFFORTS TO RESTORE LOST OR CORRUPTED CLIENT USER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE QUANTICMIND’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CLIENT DATA. QuanticMind reserves the right to establish or modify its general practices and limits relating to storage of Client User Data.
Grant of License to QuanticMind of Client User Data. Client grants to QuanticMind a limited, royalty-free license to use, reproduce and modify Client User Data solely as necessary for QuanticMind to provide Services for Client and to perform its other obligations to Client hereunder. Client’s license to QuanticMind includes the right to collect Client User Data, either directly from Client or through other means such as the use of redirects and pixels. QuanticMind will not disclose Client User Data to any third party unless such disclosure is (i) approved by Client, or (ii) is made by QuanticMind in response to legal process, and provided that QuanticMind has given Client reasonable notice of, and a reasonable opportunity to contest, such legal process.
Grant of License to QuanticMind of Aggregated Anonymous Data. So that QuanticMind may improve and promote its offerings, Client grants QuanticMind a perpetual, unlimited, royalty-free license to aggregate Client User Data with other data, (and/or segregate portions of the Client User Data) so that it is non-personally identifiable with respect to both Client and visitors to Client website(s) (“Aggregated Anonymous Data”). Client agrees that QuanticMind may create Aggregated Anonymous Data, and may use, reproduce, distribute, execute, display and commercially use the Aggregated Anonymous Data at its discretion. QuanticMind may disclose Aggregated Anonymous Data to third parties, publish it through its website, blog, or by other means, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data. Client shall have no interest in such Aggregated Anonymous Data or any use thereof by QuanticMind. This license shall survive the termination of this Agreement.
Internet Access and Communication.
To use the Service, you must have access to the Internet, either directly or through devices that access Web-based content. You must provide all equipment necessary to make (and maintain) such connection to the Internet. You are solely responsible for your equipment, connection, and all other networking and storage devices which you use to connect to the Service. You shall be solely responsible for all costs, fees, expenses, and taxes of any kind related to the foregoing. QuanticMind shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. You agree to provide QuanticMind with your e-mail address, to promptly notify QuanticMind of any changes to your e-mail address, and to accept e-mail or other electronic communications from QuanticMind that are necessary to communicate with you about the Service. QuanticMind may provide any and all notices, statements and other communications to you through e-mail, posting a notice in your User Account, or posting elsewhere on the Service, and you expressly release and shall hold QuanticMind harmless from any responsibility to communicate with you other than through e-mail or electronic means of the Company’s choosing. You agree that as long as the Company provides conspicuous notice in your User Account or elsewhere on the Service, Company shall have no liability for failure to notify you via e-mail, including for improper address, filtration, bounce-back, erroneous transmission or other e-mail or technical malfunction.
Third Party Software.
You agree to use software produced by third parties, including but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by QuanticMind. Until notified otherwise by QuanticMind, you agree to use software that supports the Secure Socket Layer protocol or other protocols accepted by QuanticMind and to follow the logon procedures for that service. You acknowledge that QuanticMind’s Service is designed to allow you to transact modifications of advertising campaigns through other third party systems, and that your access to the Service requires that your software will satisfy the security requirements of each such third party system. You acknowledge that QuanticMind is not responsible for notifying you of any upgrades, fixes, enhancements or other modifications to any such third party software, or for any compromise of data transmitted across computer networks not owned or operated in whole by QuanticMind.
You are solely responsible for all activity occurring under your User Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You are solely responsible for maintaining the confidentiality of your User Account and password and for restricting access to your computer(s), and you are responsible for all activities that occur under your User Account by you or any Authorized User of your User Account, including but not limited to Client Orders. You shall promptly notify QuanticMind of any suspected or alleged violation of this Agreement including any unauthorized use of any password or User Account or any other known or suspected breach of security. You shall cooperate with QuanticMind with respect to: (a) investigation by QuanticMind of any suspected or alleged violation of this Agreement and (b) any action by QuanticMind to enforce this Agreement. QuanticMind may suspend or terminate any User Account upon notice to you in the event that QuanticMind reasonably determines that such User Account has been involved in a violation of this Agreement. You remain liable for the losses incurred by QuanticMind or others due to any unauthorized use of your User Account or any User Account created by you, including but not limited to any charges associated with any Client Advertising Account (as defined below) or Client Order.
If you are a paying Client, you grant QuanticMind a non-exclusive, perpetual, royalty free fully paid up limited right to use your name, trademarks, service marks and logos in the production of marketing materials promoting the Company and the Service, provided that such use is in accordance with your trademark and intellectual property use guidelines. All goodwill from the use of such properties shall inure to your benefit.
Transmission of Data.
You understand that the processing and transmission of your transactions, communications and other instructions (collectively ” Data Exchanges”) are fundamentally necessary to your use of the Service and consent to QuanticMind’s interception, storage and access to such Data Exchanges. You also understand that such Data Exchanges will involve communication over the Internet and over various networks which are not owned or controlled in whole by QuanticMind and that changes to your Data Exchanges may occur in order to conform and adapt such Data Exchange data to the technical requirements of connecting networks or devices. You further understand that Data Exchanges may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that QuanticMind is not responsible for any Data Exchange which is lost, altered, intercepted or stored without authorization during the movement of any data across networks not owned or controlled and operated by QuanticMind. Client acknowledges that functionality may be available in Client’s Advertising Account which is not available through the Service. Client agrees that Client remains responsible for checking updating or otherwise transacting through Client’s Advertising Account to ensure Data Exchange accuracy.
Third Party Sites.
QuanticMind’s Service may provide links to third party sites or resources. QuanticMind has no control over such third party sites or resources and you acknowledge and agree that QuanticMind is not responsible for the availability of such external resources and does not endorse and is not liable for any content, advertising, products or other materials available from or on such sites or resources. Any transactions or activity between you and any third party site or resource is solely between you and the applicable third party, and any terms, conditions, warranties or representations associated with such activity shall be between you and them. You recognize that certain third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with QuanticMind. If you are referred to a third party site as an affiliate of QuanticMind, then you agree to permit such third party site to share details of your transactions with them with QuanticMind, and you waive any objection to any referral fee earned by QuanticMind.
Representations and Warranties.
Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out its provisions; (b) it is duly authorized to execute and deliver the Agreement and to perform its obligations; and, (c) the Agreement is valid and legally binding upon it and the execution, delivery and performance thereof by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it. Client represents and warrants that (i) the content or services provided by Client and marketed by QuanticMind will not contain any information or materials that is unlawful, hateful, threatening, obscene, defamatory or offensive, and (iii) the content or services provided by Client and marketed by QuanticMind through the Search Engine Marketing Services or Additional Services will not violate any law, regulation or rights of any third party including, without limitation, intellectual property rights or rights of publicity or privacy.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ADDITIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY ESTIMATES OF ANY PERFORMANCE IMPROVEMENT IN CLIENT’S ADVERTISING CAMPAIGN. QUANTICMIND DOES NOT WARRANT THE RESULTS OF THE SERVICES OR ADDITIONAL SERVICES, THAT THE SERVICES OR ADDITIONAL SERVICES WILL MEET CLIENT’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE), THAT THE PROVISION OF THE SERVICES OR ADDITIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ANY ERROR IN THE SERVICES OR ADDITIONAL SERVICES WILL BE CORRECTED. CLIENT ACKNOWLEDGES THAT THE SERVICES OR ADDITIONAL SERVICES MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FROM TIME TO TIME.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY, FOR (I) ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION OR BUSINESS, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR AS ARISING UNDER THE INDEMNIFICATION PROVISIONS CONTAINED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNT IN EXCESS OF THE AMOUNT IN AGGREGATE PAID TO QUANTICMIND HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Each party (an “Indemnitor) hereby agrees to indemnify, defend and hold the other party, and its respective officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys (the “Indemnitee) harmless from and against any and all third party claims or proceedings, including all liabilities, costs and expenses (including without limitation, reasonable attorneys’ fees and related costs and expenses, whether or not suit is filed or proceedings instituted thereon) related thereto, arising in connection with any breach or default by the Indemnitor of its representations and warranties hereunder. Each Indemnitor’s obligations of indemnification under this paragraph shall be conditioned upon the Indemnitee (i) providing the Indemnitor prompt written notice of any such claim, (ii) cooperating with the Indemnitor, at Indemnitor’s expense, in connection with the defense and/or settlement of the claims, and (iii) permitting the Indemnitor to control the investigation, defense, settlement and appeal of the claim, provided that any settlement that involves liability or an admission on the part of the Indemnitee shall be first approved in writing by such Indemnitee. The Indemnitee may, at its expense, participate in the defense and settlement of the claim.
This Agreement, including the applicable Exhibits, Work Orders or Order Forms entered into hereunder, contains the entire understanding and agreement of the parties, incorporating herein all previous negotiations and agreements, superseding all prior or contemporaneous proposals, communications and understandings, whether written and oral.
No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
Neither party may assign this Agreement to a third party without the prior express written consent of the other party, which consent shall not be unreasonably delayed or withheld; provided however, either party may assign this Agreement to (i) an affiliate of such party, or (ii) any acquirer of all or of substantially all of such party’s equity securities, assets or business related to the subject matter of this Agreement.
Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to Agreement.
Compliance with Law.
Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Agreement.
The relationship of the parties shall be solely that of independent contractors, and nothing in the Agreement, or in the business or dealings between the parties, shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.
Except as provided elsewhere herein, both parties must send all notices relating to the Agreement in writing via overnight mail (or international express mail by an internationally recognized courier) or email to the parties at the address and email address listed in the signature block or as maintained by you within your QuanticMind Service online account. Notices shall be effective five (5) days after the date of mailing.
Jurisdiction and Venue; Attorney’s Fees.
This Agreement shall be governed by the laws of the State of California without respect to choice of law rules, and the parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in San Mateo County, California. Client waives the personal service of any process upon it and agrees that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. The prevailing party in any dispute shall be responsible for the other’s party’s reasonable attorney’s fees.
This Agreement, and its exhibits, may be entered into by each party in separate counterparts and shall constitute one fully executed agreement upon execution by both Client and QuanticMind.
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, Internet disruption (including without limitation denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of nature.
All outstanding payment obligations, the complete sections entitled “Grant of License; Restrictions” and “Representations and Warranties,” and the sub-sections entitled “Client Responsibility,” “Survival,” and “Rights and Obligations Upon Expiration or Termination” survive the termination or expiration of this Agreement.
Monthly Fees for your use of the Services shall be designated in a Subscription Services Order Form between you and QuanticMind. Unless agreed to otherwise in the Subscription Services Order Form, at the beginning of each month during the Term of this Agreement, QuanticMind will automatically bill your credit card based on use of the Services In consideration for QuanticMind providing the Services, you shall pay to QuanticMind all the applicable Subscription Service Fees and other charges, as provided for in this section, including any third party API costs (i.e., Publisher API costs) billed to QuanticMind in the course of providing the Services to you (collectively, “Fees). QuanticMind agrees to pass through to you all API costs incurred by you and billed to QuanticMind at no additional mark up. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on QuanticMind’s net income.
If payment to QuanticMind originates from a corporate entity based in Brazil, you grant permission to QuanticMind designated third parties to close the FX contract and to remit funds relating to payments executed via boleto bancario. All third parties mentioned herein act on your behalf and do not account for collecting taxes, which might originate in relation to this operation.
Term and Termination.
This Agreement will commence and renew as stated in the Subscription Services Order Form.
QuanticMind may terminate this Agreement at any time if it reasonably determines that you are in material breach of this Agreement, including, but not limited to, with respect to payment of Fees. All other termination rights shall be stated in the Subscription Services Order Form.
Rights and Obligations Upon Expiration or Termination.
Upon expiration or termination of this Agreement, you and your Authorized Users right to access and use the Services shall immediately terminate, you and your Authorized Users shall immediately cease all use of the Services, and you shall return to QuanticMind and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to QuanticMind. Upon expiration or termination of this Agreement, QuanticMind shall have no obligation to deliver any copy of the Client Data to you, and may delete such Client Data at any time.