This Terms of Service (“Agreement”) is between you as advertiser (“Advertiser”, “you” or “your”) and Leadvisor Technology Inc. (“Saleszoom”) and constitutes the terms and conditions for your use of the Saleszoom and optimization platform (“Saleszoom Platform”) and the services provided by such platform (“Service”) (each, a “Party”, and together, the “Parties”). The term “Advertiser” means the person registering to use the Service or any other person or entity identified in any Service account on whose behalf you are authorized to act.
By accessing or using the Service, creating any account for accessing the Services or by, Advertiser agrees that you have the authority to bind and you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not create a Service account, or access or use any Service.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SALESZOOM.
1. Description of Services
(a) Service . The Service allows Advertiser to automatically manage their advertising campaigns and placement of advertising materials, including key word advertising (“Advertising Materials”) for targeted advertising and display on various advertising networks and publisher platforms (“Ad Platforms”).
(b) Saleszoom will act on Advertiser’s behalf as an agent for a disclosed principal and is authorized to place advertising and Advertising Materials authorized by Advertiser through the Service on Ad Platforms, provided that Advertiser shall be solely responsible for paying any and all fees due to any third party relating to such placement of advertising or Advertising Materials on the Ad Platforms.
(c) Advertiser retains sole responsibility for determining the content of its Advertising Materials and Advertiser will provide to Agency promptly and at no charge any Advertiser Materials necessary to provide the Services. Advertiser will ensure that it has all rights and licenses in place to enable use of all Advertiser Materials through the Services.
(a) License to Saleszoom Platform . Subject to the terms and conditions of this Agreement, you shall have the non-exclusive, non-transferable right during the Term to access and use the Saleszoom Platform solely for purposes of: (a) performing projections of advertising impression inventories that might be available through the Saleszoom Platform, (b) uploading and storing Advertising Material for delivery through the Saleszoom Platform, (c) selecting targeting and delivery criteria for the delivery of Advertising Materials, and (d) receiving reports of ads Platform.
(b) License to Advertising Materials . During the Term and in connection with the Saleszoom Platform, you hereby grant Saleszoom a worldwide license under all of your applicable rights to reproduce, distribute, display, host, serve, route and place your ad and Advertising Materials by means of the Saleszoom Platform.
(c) Marketing and Publicity . Saleszoom shall have the right to and you hereby grant Saleszoom a non-exclusive, royalty-free, worldwide, fully paid-up license under all of your applicable rights to identify you as a client and use and display your name, trademarks, trade names, service marks and/or logos in promotional and marketing materials about Saleszoom and its Services.
We may offer the Service free of charge for a trial period as specified on our website. After any applicable trial period, we will collect fees (“Fees”) in the amount specified on the pricing page on the Salezoom website, which may consist of a percentage of the payments charged by Ad Platforms for the placement of your advertising campaigns or Advertising Materials. We reserve the right to increase or change the Fees charged on thirty (30) days’ notice. You are responsible for remitting our Fees in accordance with our policies as posted on our website (which may be withheld from payments made to providers of the Ad Platforms) and for paying any fees charged by the provider of the Ad Platform and corresponding inventory and other third parties relating to the placement of advertising campaign and Advertising Material, including any media buying fees or bid reductions, operating fees, fraud, chargebacks, refunds, uncollected amounts, and credit card processing fees.
“Taxes” means any and all withholding, sales, use, value added or other taxes, duties or charges that are imposed by any jurisdiction on the transactions described in this Agreement, other than taxes based on Saleszoom’s net income. You are responsible for all Taxes (if any) associated with the Services. Each party shall remit the amounts due after deducting any and all Taxes that may be applicable to any applicable remittances. Specifically, Saleszoom may deduct or withhold any withholding taxes that Saleszoom may be legally obligated to deduct or withhold from any amounts due to you under the Agreement, and remittance to You as reduced by such deductions or withholdings will constitute full remittance and settlement of amounts due to You under the Agreement. If a tax authority subsequently finds that Saleszoom’s withholding tax payment insufficient and requires additional payments, Saleszoom will make such payments and you will reimburse Saleszoom for such additional withholding tax payments, or Saleszoom may, at its election, deduct such amounts from amounts due to you. Within a reasonable period of time, Saleszoom will provide you with documentation evidencing its withholding tax payments.
5. Service Implementation.
You will (a) promptly integrate with the Ad Network and maintain, including by updating as soon as commercially available, the then-current version of any required Service software, including, without limitation, any software development kit (“SDK”), APIs or other software (“Saleszoom Code”), in a manner that complies with the technical and implementation requirements provided under this Agreement or by Saleszoom from time to time, and (b) comply with any Service protocols and any other instructions contained in any Saleszoom documentation for any Service (the “Protocol”).
6. Other Obligations
(a) Content . You are solely responsible for the content and placement of your Advertising Materials and for handling all inquiries from any publishers or other holders of inventory you purchase through the Service. You represent and warrant that your Advertising Materials are truthful and not misleading, do not violate any applicable law, rule, regulation or order, do not violate any person’s copyright, trademark, trade secret, or right of privacy or publicity, and are not defamatory or libelous. You shall not include in any Advertising Materials (i) any malware, spyware or any other malicious code or code that may be used to circumvent any Saleszoom security measure, and (ii) anything that could personally identify an End User or other person.
(b) Efficacy of Ads . Saleszoom has no responsibility or liability for the effect or efficacy of the advertising that is placed or managed through the Service or if such advertising does not achieve any result. Advertisers are solely responsible for checking the effects of their advertising campaigns and managing them.
(c) Your Account . You will be required to create an account (“Account”) to access and user the Services. You will ensure that all information in your Account, including, but not limited to, full name, contact address, and payment information is up-to-date, complete and accurate. You will protect your Account and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You may not create more than one account without prior written approval from us. You will not transfer your account to any other party without our prior written consent.
(d) Equipment . You are solely responsible for the operation and maintenance of any server systems, mobile devices, personal computers, or other equipment owned, operated, or managed by you on which the Service is accessed and for having and paying for all equipment and internet access necessary to access and use the Service.
(e) Other Prohibited Actions . You shall not (and not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Service; (ii) sell, resell, license, sublicense, distribute, rent, or lease any part of the Service or encumber the Service with any lien or grant a security interest in the Service; (iii) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (iv) access the Service for the purposes of monitoring its availability, performance, or functionality; or (v) access or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service or copy any features, functions, or graphics of the Service. Use Policy.
(g) No Endorsement . You acknowledge and agree that Saleszoom is not affiliated with or responsible for any products or services you may choose to advertise through the Service. Saleszoom reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any content, in whole or in part, that in Saleszoom’s sole and absolute discretion, deems objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement, provided that Saleszoom has no obligation to monitor the content of any Advertising Materials. Notwithstanding the foregoing, Saleszoom may remove or block any Demand Ad or Publisher Ad if Saleszoom reasonably determines that such action is appropriate to prevent errors or any other harm with respect to the Service, it violates Saleszoom’s Policies, or to avoid or limit Saleszoom’s liability.
(h) Child-Directed Ads . You represent and warrant that (i) no Advertising Material is directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) You will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to Saleszoom.
(i) Third-Party Terms . You (i) will comply with any third-party terms and conditions applicable to the placement of ads and Advertising Materials on the Ad Network (collectively, “Third-Party Terms”), and (ii) will not cause Saleszoom to be in violation of any such Third-Party Terms.
(j) Third Party Services . Saleszoom may use third party services providers to make certain services available to you, including to view performance metrics. Such third party services may change at any time, in Saleszoom’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. .
(k) International Compliance . You will not use Saleszoom to serve Advertising Materials, or target Advertising Materials to, countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. You will not use any Saleszoom Materials in connection with any Ad Network, that is distributed or otherwise made available to any countries, entities, or individuals subject to U.S. trade sanctions or other U.S. export control laws. Further, You represent and warrant that You (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (iii) are not placed on the U.S. Commerce Department’s Denied Persons List; and (iv) will not access or use any of the Services if any applicable laws in Your country prohibit You from doing so in accordance with this Agreement.
7. Personal Data
(b) Controller Relationship . You acknowledge that you and Saleszoom are each independent controllers of the personal data processed in order to provide the Services and that Saleszoom will individually determine the purposes and means of processing described in this Agreement. In no event will the Parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data.
8. Term; Termination
The term of this Agreement will commence on the date you create an Account and agree to the terms of this Agreement, and will continue until terminated by either party as provided in this Agreement (“Term”). You may terminate this Agreement, with or without cause, at any time by sending written (via email) notice to the address and contact set forth in Section 17(l) below; provided that such termination will become effective upon the earlier of 10 business days after Saleszoom’s receipt of such notice or the date upon which, after receiving such notice, Saleszoom suspends Your ability to access or use the Service or terminates Your Account. Saleszoom may terminate this Agreement or any Account, with or without cause, in Saleszoom’s sole discretion, at any time. Upon termination of this Agreement, (a) any licenses granted to you in this Agreement will automatically terminate, and you must immediately cease all use of any of the Services.
9. Suspension; Discontinuance
Saleszoom has the right, in its sole discretion, with or without notice, to suspend any application from Your Account, your Account or your access to any Service. Saleszoom reserves the right to modify or discontinue, temporarily or permanently, any Service or Saleszoom Code, or any features or portions thereof, without prior notice. You agree that Saleszoom will not be liable for damages of any sort that result from any such suspension, modification, or discontinuance of Your Account.
10. Data Use
In connection with the operation of any Service, Saleszoom and you may collect and receive Service Data. “Service Data” includes any information that you or Saleszoom collect during the delivery of ads or the performance of obligations under this Agreement, including End User viewed, or clicked on, http header information, and any other data that You elect to provide Saleszoom. You agree that Saleszoom will have the right to: (a) use and disclose Service Data (i) to provide any of the Services, (ii) for its internal business purposes, (iii) to improve any products or services provided by Saleszoom, and (iv) to enable, and allow for the improvement of, services provided by Saleszoom’s third party partners; (b) use and disclose Service Data as may be required by law or legal process; and (c) use and disclose Service Data when it is aggregated, such that it does not identify you, any End User, or individual device. You may use Service Data that you receive for your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Service Data, and that you obtain any and all consents, waivers, approvals, authorizations and clearances from End Users that may be required by applicable laws in connection therewith.
11. Confidentiality; Ownership.
(a) Confidentiality . You agree not to disclose Saleszoom Confidential Information (defined below) without Saleszoom’s prior written consent and to use at least the same degree of care to prevent unauthorized use and disclosure of such Saleszoom Confidential Information as You use with respect to Your own confidential information (but in no event less than a reasonable degree of care). “Saleszoom Confidential Information” includes any and all information that is disclosed by Saleszoom, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or under the circumstances and nature of the information would be reasonably deemed to be confidential, and includes the features and functionality of any Service. Saleszoom Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (b) is rightfully known by You at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the You without use of or reference to Saleszoom’s Confidential Information and without any violation of any obligation of this Agreement; or (d) You rightfully obtain from a third party lawfully in possession of such information without restriction on use or disclosure.
(b) Ownership . As between the parties, Saleszoom retains all right, title and interest in and to the Services and Saleszoom Platform and any materials created, developed or provided by Saleszoom in connection with this Agreement, including all Intellectual Property Rights (as defined below) related to each of the foregoing. As between the parties, except as set forth herein, you and your licensors retain all right, title and interest in and to Advertising Materials, including all Intellectual Property Rights related thereto. “Intellectual Property Rights” means copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority. If you provide any feedback or suggestions to Saleszoom in connection with this Agreement or any Service or Saleszoom and to such Feedback to Saleszoom.
Services are made available for use “AS IS,” and any use thereof will be undertaken solely at tour own risk. Saleszoom reserves the right, in its sole discretion, to include or cease providing the Services at any time (subject to notice as may be required herein), and Saleszoom does not give or enter into any conditions, warranties or other terms with regard to the Services. Saleszoom does not control, endorse or adopt any Advertising Materials and makes no representation or warranties of any kind regarding the content of any Advertising Materials, including, without limitation, regarding the accuracy, completeness or decency of the same. Saleszoom makes no warranties, express or implied, with respect to subject matter of this Agreement, and expressly disclaims the implied warranties of merchantability, non-infringement, title, fitness for a particular purpose, and implied warranties arising from course of dealing or performance. For the avoidance of doubt, Saleszoom does not guarantee the results of the Services or that the Services will be correct, uninterrupted or error-free, that defects will be corrected, or that the Services are free of viruses or other harmful components, that the Services will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Saleszoom’s (or its wholly owned subsidiaries or affiliates’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Saleszoom (or its wholly owned subsidiaries or affiliates) or your servers are located or co-located.
13. Limitation of Liability
SALESZOOM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SALESZOOM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL SALESZOOM’S LIABILITY AND DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO ANY SERVICE OR THIS AGREEMENT EXCEED $500. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. Representations and Warranties
authorizations and licenses (including without limitation any Intellectual Property Rights) that are required with respect to (i) the Advertising Materials, (ii) to display the Advertising Materials on the Ad Network, (iii) to permit Saleszoom to perform the services contemplated under this Agreement and (iv) to grant the rights you grant herein; (b) you will not advertise anything illegal or engage in any illegal or fraudulent business practice; (c) all of the information provided by you to Saleszoom to enroll in any Service is correct, accurate, complete and current at all times; (d) you have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of you hereunder; (e) if you are entering into this Agreement, or otherwise accessing or using any Service, on behalf of any other person or entity, you are authorized to enter into this Agreement and accessing and using such Service on such person or entity’s behalf; (f) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in your performance of any acts hereunder, and you will not cause Saleszoom to be in violation of any applicable laws; (g) you comply with and have any and all consents, waivers, approvals, authorizations and clearances from End Users to allow Saleszoom to collect and use the Service Data in accordance with this Agreement, and as may be required for Saleszoom to provide services hereunder; (h) you will at all times comply with Saleszoom Policies; and (i) Advertising Materials do not now nor will in the future infringe upon or violate any Intellectual Property Rights of any third party, including but not limited to any patent, copyright, trademark, trade secret, or moral right.
You agree to indemnify, defend and hold Saleszoom, its licensors, independent contractors and suppliers, and its and their agents, directors, officers, and employees (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from (i) your use of the Service, and/or your breach of any term of this Agreement, (ii) any claim or allegation that any Advertising Material or content of advertising you place through the Service infringes upon, violates, or misappropriates any intellectual property right or privacy or publicity right, or slanders, defames, or libels any person, or (iii) your failure to secure all consents, licenses, waivers, rights, title, and interest necessary to display the Advertising materials. You agree not to settle any claim against any Indemnified Persons without Saleszoom’s prior written consent.
The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either Party initiating a lawsuit or arbitration. Except for claims for injunctive relief or disputes relating to Saleszoom’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) (“Excluded Claims”), all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Excluded Claims, the arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. You agree not to participate in claims brought in a private attorney general or representative capacity or consolidated claims involving another person’s account. This dispute resolution provision will be governed by the Federal Arbitration Act.
(a) Force Majeure . Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.
(b) Governing Law and Jurisdiction . This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles. Subject to Section 16, each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in San Francisco, California with regard to any dispute arising out of or relating to this Agreement. The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
(c) Independent Contractors . The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; or (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking.
(d) Binding Effect . This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns.
(e) Amendments . No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties.
(f) Partial Invalidity . If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable. If such the remaining terms, and the remaining terms will remain in effect.
(g) No Waiver . No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions nor in any way affect the ability of either Party to enforce each and every such provision thereafter.
(h) Construction . The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto. The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.”
(i) Entire Agreement . This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter.
(j) Assignment. You shall not assign or delegate this Agreement or any of your licenses, rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of Saleszoom, and any purported assignment shall be void and of no force or effect. Saleszoom may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in Saleszoom’s sole discretion.
(k) Electronic Communications . As part of the Service we provide, you may (if enabled) receive notifications, alerts, or other types of messages via email or the messaging functionality provided by the Services (“Messages”). You have control over the Messages settings and can opt in or out of these Messages (with the exception of service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the email you receive.
(l) Notices . Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by email to the email address provided in your account. Notices to Saleszoom shall be sent via email to the following address: email@example.com . Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered.
(m) Survival . Sections 3, 4, and 7-17 will survive any expiration or termination of this Agreement.