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Terms of Service

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY USING THE WEBSITE SPOTFRONT.COM (THE “SITE”) SERVICE PLATFORM, APPLICATIONS, FEATURES AND OTHER CONTENT (COLLECTIVELY, THE “SERVICES” OFFERED BY SPOTFRONT, INC. (“SPOTFRONT”), YOU SIGNIFY YOUR ASSENT TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE ANY RIGHT TO USE THE SERVICES.

The Services, owned and operated by Spotfront, are to help businesses create, target and publish online display advertisements to consumers with the target attributes they seek. This Agreement applies to all users of the Services. Your use of the Services is an acknowledgment that you understand and agree to be bound by this Agreement, any fees applicable to you, any additional guidelines, Spotfront’s Privacy Policy, and any future modifications of this Agreement. The Services are accessed by you (“User” or “you”) under the following terms and conditions:

ACCESS TO THE SERVICES. Spotfront hereby grants Customer a limited, non-exclusive, non-transferable, non-sub-licensable right and license during the Term of this Agreement to remotely access and use the Service Platform as provided by Spotfront. Customer shall have access to the Service Platform only through remote access through the confidential password protected login process provided by the Service Platform. Only employees of Customer, and those of Customer’s Advertisers, agents and subcontractors, whose names shall be provided to Spotfront and who have entered into valid agreements with Customer (“Authorized Representatives”), shall be allowed to remotely access and use the Service Platform pursuant to this Agreement. Spotfront may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or Content. Spotfront may also restrict your access to parts or all of the Services without notice or liability. Spotfront may modify this Agreement at any time by posting a notice on the Services, or by sending you a notice via e-mail or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. If at any time you do not agree to these terms and conditions, you must terminate your use of the Services. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination.

Customer understands and agrees, that: (i) the Service Platform is a beta test version of software that may contain bugs, defects and errors, (ii) the Service Platform may be modified during the course of this Agreement and (iii) any Feedback with respect to Customer’s use of the Service Platform is subject to the ownership provisions of Section 6, and may be used by Spotfront in Spotfront’s development of, and incorporated into, any subsequent commercial release or upgrade. Spotfront has no obligation under this Agreement or otherwise to correct any bugs, defects or errors in the Service Platform or otherwise to support or maintain the Service Platform. Accordingly, any research or development performed, or business plans made, by Customer regarding or in reliance upon the Service Platform is at Customer’s own risk. Customer is fully responsible for any and all Digital Media Inventory purchased hereunder by Customer or any of its Authorized Representatives except to the extent such Digital Media Inventory purchased hereunder is not subsequently delivered in accordance with this Agreement solely due to a technology defect in the Service Platform which defect was not the result of any act or omission of Customer or any of its Authorized Representatives. The Service Platform and related documentation, the Feedback, and information and data concerning the development status of the Service Platform, the functionality of the Service Platform, the appearance, content and flow of the Service Platform screens and the method and pattern of user interaction with the Service Platform are the Proprietary Information (as defined in Section 5.1) of Spotfront. Customer understands and agrees that Customer will gain no right, title or interest in or to the Service Platform or any other products or services (other than as licensed pursuant to Section 2) by virtue of Customer’s Feedback to Spotfront or for any other reason. Customer agrees that it does not now have, will not have, nor will it ever claim, any proprietary rights (including intellectual property rights and trade secret rights) in or to the Feedback, the Service Platform and/or the other services and products offered. If Customer is ever held or deemed to hold any right, title or interest in or to the Service Platform (including any changes, modifications or corrections thereto), other services and products, and/or the Feedback, then Customer hereby irrevocably assigns to Spotfront all such right, title and interest. In the event that any such rights (including, by way of example and without limitation, “moral rights,” or other similar rights) cannot be so assigned, Customer hereby agrees to waive enforcement worldwide of such rights against Spotfront and grants to Spotfront an exclusive, irrevocable license, with right to sublicense through multiple tiers of sublicensees, to use, reproduce, distribute, create derivative works of, publicly perform and display, in any medium or format, whether now known or later developed, any and all property that is subject to such rights.

Customer will not, and will not permit any third party within its control to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service Platform or any software, documentation or data related to the Service Platform (“Software”) in any way through any medium. Without limiting the generality of the foregoing, Customer also agrees not to (i) modify, translate, create derivative works, copy, store, display, distribute, sell, license, sublicense (except as expressly provided herein), or publish any or all of the Services of Spotfront without prior written permission of Spotfront or the copyright holder identified in the applicable copyright notice, including without limitation use of any robot, spider, packet sniffer or other automated device to monitor or copy the contents of the Services; (ii) use the Services for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of its customers; (iii) build a competitive product or service or make or have made a product using substantially similar features, functions or graphics of the Service; (vi) directly or indirectly use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations, or (iv) restrict or inhibit any other customers from using and enjoying the Services and the Software.

You certify to Spotfront that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also certify that you are legally permitted to use the Services and access the Site. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this agreement, in which case the terms “you” or “your” shall refer to such entity. This Agreement is void where prohibited by law, and the right to use the Services is revoked in such jurisdictions.

Spotfront will use reasonable efforts to ensure that the Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Spotfront to minimize such disruption where it is within Spotfront’s reasonable control. SPOTFRONT WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE, THE SERVICES, YOUR USER CONTENT (AS DEFINED HEREIN) OR OTHER CONTENT.

CONTENT. You shall not store any significant portion of the Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Spotfront, or from the copyright holder identified in such Content’s copyright notice. All trademarks, service marks, and trade names which appear on the Services (other than those appearing in any Content created or posted by a User) are proprietary to Spotfront or third parties. You shall abide by all copyright notices and restrictions contained in any Content accessed through the Services.

The Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section of this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
You acknowledge and agree that if you contribute Content to the Services, including but not limited to online display advertisements created using the Spotfront application, websites linked to online display advertisements, images, graphics and text (“User Content”), you hereby do and shall grant Spotfront a non-exclusive, worldwide, royalty-free, transferable, sublicensable right to use, modify, reproduce, distribute, prepare derivative works of, display, publish, perform and otherwise fully exploit such User Content (including all related intellectual property rights) in any media format and through any media channel and to allow others to do so. You also hereby do and shall grant each user of the Services a nonexclusive license to use your User Content as permitted through the functionality of the Services and under this Agreement. You warrant, represent and agree that you have the right to grant Spotfront the rights set forth above. You represent, warrant and agree that you will not contribute any User Content that (a) infringes or violates any copyright or trademark or trade secret of another party, (b) infringes any intellectual property right or the privacy or publicity rights of another, (c) is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party, (d) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information, (e) causes damage to the systems of Spotfront partners in any way, or (f) remains posted after you have been notified that such User Content violates any of sections (a) to (e) of this sentence.

Spotfront reserves the right to remove or modify any User Content, including your display advertisements, from the Site and the Services at any time, for any reason or for no reason at all. All information transmitted through the Services is the sole responsibility of the person from whom such information originated. Spotfront cannot guarantee the identity of other users with whom you interact in the course of using the Services. Spotfront does not assume liability for any User Content. You are responsible for all User Content created, posted or published under your username, including User Content contributed by a third party under your username. If you believe User Content residing on the Site or the Services infringes a copyright, please see our Copyright Policy below.

Any feedback relating to the Services (“Feedback”) submitted to Spotfront shall become the property of Spotfront. Spotfront will not be required to treat any Feedback as confidential, and will not be liable for any ideas or incur any liability as a result of any similarities that may appear in our future Services, or operations.

DATA. Spotfront shall retain ownership of all data received or developed during the performance of the Services (“User Data”) including but not limited to any data that is collected from any online display advertisements or advertising campaigns of you or other Users during the term of this Agreement, any data used by Spotfront for delivery of the Services, any data derived from the performance of a campaign that does not specifically identify the User, any data relating to any error, issue or enhancement to the operation or use of the Services, and any data that Spotfront would have obtained or developed regardless of your use of the Services. Spotfront hereby grants you a limited, non-exclusive, nontransferable, revocable right to use the User Data obtained from your Spotfront campaigns for your internal analysis purposes only. Spotfront agrees to disclose User Data related to your Spotfront campaigns solely (i) to you, (ii) to Spotfront’s employees and agents who provide us with products and services, and (iii) to comply with court order, law, or direction by a governmental or regulatory agency (in which event, Spotfront will use reasonable efforts to provide prior written notice to you of such disclosure and the opportunity to object to such disclosure or to seek confidential treatment of such data). Spotfront shall use User Data solely to (i) operate, manage, maintain and enhance the Services, and (ii) to improve the Services’ ability to deliver targeted online display advertising services to you. Spotfront reserves the right to withhold, remove and/or discard User Data without notice for any breach of this Agreement by you, including, without limitation, your non-payment of fees due hereunder. Upon termination of this Agreement for your breach, your right to access or use User Data related to your Spotfront campaigns immediately ceases, and Spotfront shall have no obligation to maintain or forward any User Data to you.

RESTRICTIONS. You are responsible for all of your activity in connection with the Services. You may not post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account, or private information from any Spotfront user.

You shall not use any part of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run Maillist, Listserv, any form of auto-responder, or spam on the Site or through the Services. You will use the Services only in compliance with all applicable laws (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity, or defamation).

WARRANTY DISCLAIMER. Spotfront has no special relationship with or fiduciary duty to you. You acknowledge that Spotfront has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Spotfront from all liability for your having acquired or not acquired Content through the Services. Spotfront is neither an agent of nor is connected with any individual or business which a user contacts through the Services. Spotfront does not manage or control any business or individual that you may interact with through the Services, and Spotfront accepts no responsibility or liability for any act or omission by such entity. You hereby waive any and all legal or equitable rights or remedies you have or may have against Spotfront with respect to acts and omissions by such entities.

The Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Spotfront makes no representations concerning any content contained in or accessed through the Services, and Spotfront will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT ALLOWED BY LAW, SPOTFRONT DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT SPOTFRONT IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THROUGH THE SERVICES; (4) THE INABILITY TO ACCESS OR RETRIEVE ANY USER CONTENT FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM; (5) CONTENT POSTED IN ANY COMMUNITY AREA OF THE SERVICES; AND (6) ANY USER’S VISIT TO OR INTERACTION WITH ANY BUSINESS OR INDIVIDUAL ENCOUNTERED THROUGH THE SERVICES.

THIRD PARTY SITES AND SERVICES. Users of Spotfront may gain access from the Services to third party sites on the Internet. Third party sites or services are not within the supervision or control of Spotfront. Spotfront makes no representations or warranties about any third party site or resource, and does not endorse the products or services offered by third parties. Spotfront disclaims all responsibility and liability for content on third party websites. Any transactions or activity between you and any third party site or resource are solely between you and the applicable third party. You hereby irrevocably waive any claim against Spotfront with respect to third party content. 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 Spotfront. If you are referred to a third party as an affiliate of Spotfront, you agree such third party may share details of your transactions with them with Spotfront, and you waive any objection to any referral fee earned by Spotfront.

REGISTRATION AND SECURITY. As a condition to using Services, you may be required to supply Spotfront with certain registration information. You shall provide Spotfront with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in termination of your access to and use of the Services. You may not use as your username a name (i) of another person with the intent to impersonate that person; or (ii) subject to any rights of a person other than you without appropriate authorization; or (iii) that is otherwise offensive, vulgar or obscene. You shall never use another User’s account or registration information, for Spotfront’s or any third party services you access through Spotfront, without permission. Spotfront reserves the right to refuse registration of or cancel a username in its discretion. You shall be responsible for maintaining the confidentiality of your Spotfront password.

You irrevocably authorize Spotfront to disclose your personally identifiable information at the request of any state, federal or other governmental agency or in response to any judicial process (including, without limitation, a subpoena).

INDEMNITY. You will indemnify and hold Spotfront, its directors, officers, employees, agents, and representatives harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to or use of the Services, your violation of this Agreement, or your infringement, or the infringement by any third party using your registration information, of any intellectual property or other right of any person or entity.

LIMITATION OF LIABILITY. IN NO EVENT SHALL SPOTFRONT, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, USER CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS; OR (D) DAMAGES RELATED TO DOWNLOADING OR POSTING CONTENT. SPOTFRONT’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

TERMINATION. Either party may terminate the Services at any time by notifying the other party by any means. Spotfront may also terminate or suspend any and all Services immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable. Upon any such termination, your right to use the Services and access Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

FEES. Spotfront will bill Customer on a monthly basis for (i) Customer’s purchases of Digital Media Inventory on the Service Platform in the prior calendar month, inclusive of any third-party publisher, ad exchange, demand-side platform, ad-serving, and other costs associated with procuring media in accordance with Customer’s specified parameters and (ii) any applicable Spotfront Fees, including Initial Platform Setup Fees or Platform Access Fees. Customer agrees to pay Spotfront all applicable fees. Any additional services will be agreed upon by the parties and set forth in a separate Quotation. Payments shall be made in US dollars at Spotfront’s address (or to an account specified by Spotfront), in full without set-off, counterclaim or deduction. If not otherwise specified, payments will be due within thirty (30) days of invoice. All amounts paid are nonrefundable.

Spotfront may charge a monthly subscription fee for use of the Services. In the event you purchase paid Services, your credit card will be charged on the first day of each monthly billing cycle beginning on your sign-up date. You may cancel your Spotfront subscription at any time, but once you have been charged a subscription fee, there are no refunds, partial or in full, for that fee.

PRIVACY. Please review our Privacy Policy which governs the use of personal information by Spotfront and to which you agree to be bound as a user of the Services.

DISPUTE RESOLUTION. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by the state and federal courts located in the State of New York. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.

MISCELLANEOUS. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Spotfront shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Spotfront’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Spotfront’s prior written consent. Spotfront may transfer, assign or delegate this Agreement and any or all of its rights and obligations without consent. Spotfront may publicly disclose in writing that you are a customer/client/vendor and may use your trademarks, service marks or trade name for such purposes. This Agreement (including the Privacy Policy) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority to bind Spotfront in any respect whatsoever. Any notice that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to legal@Spotfront.com when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to Spotfront, Inc., 175 Varick St. New York, NY 10014 Attn: Legal

Copyright Spotfront, Inc. All rights reserved.

Last Updated: February 2014