Terms of Service
Last updated April 21st 2021
All users are bound by this License Agreement. Use of any of the Company's products or services constitutes your agreement to the License Agreement.
This Adsonica Product Testing and Evaluation License Agreement (this “Agreement”) is entered into as of the [day] day of [month], [Year] (the “Effective Date”) by and between Shuttersong Incorporated, a Delaware corporation located at 41 Sawyer Road, Wellesley, Massachusetts 02481 (the “Company”) and [Customer name] located at [Address] (the “Customer”) in connection with the Customer’s evaluation (the “Evaluation”) and/or commercial use (“Commercial Use”) of the Company’s Adsonica product(s) using digital advertising media contracted and paid for by Customer.
Company and Customer agree to abide by the IAB 3.0 Standard Terms and Conditions For Internet Advertising For Media Buys One Year Or Less, which is incorporated by reference herein. Company and Customer agree that this Product Testing And Production License Agreement will serve as the Insertion Order for use of Company’s software and services.
1. DELIVERY OF PRODUCTS
a. As used herein, the term “Products” means the Adsonica software products listed in Exhibit A hereto that are provided to Customer pursuant to this Agreement, including any bug fixes, patches, upgrades or new versions that Company, in its sole discretion, provides to Customer hereunder.
b. Company will provide the Products to the Customer for the duration of the Evaluation free of charge and at the prices listed on its websites thereafter. Company will also provide technical support and assistance within 2 hours during Company’s normal business hours in the use of the Products.
c. If Agreement is between Company and a Customer that is an Agency, this Agreement is effective only for [Advertiser] located at [Address] (the “Advertiser”).
2. PRODUCT USE RIGHTS
Company may use the Products for the purpose of testing the Products in a production environment and for routine production thereafter. The Products may not be provided to any third party other than Customer’s designated advertising agency or ad serving vendors. Company retains ownership of all right, title and interest in, to and under the Products and all intellectual property rights related thereto. Any use of the Products by the Company in violation of the above shall be a breach of this Agreement and, in addition to any other remedies available, Company may require Customer to pay Company the list price of such Product.
3. LICENSE TO SOFTWARE
Subject to the terms and conditions of this Agreement, Customer is hereby granted a non-exclusive, non-transferable, non-sublicensable license during the Term (defined below) to use and copy the software made available by Company to Customer pursuant to this Agreement (“Software”) in object code form only for the sole and limited purpose of evaluation and internal testing of the Software. Customer agrees that any software or materials which may be made available by Company, or otherwise obtained or used by Customer, that are subject to an open source license or other open source terms shall be and shall remain subject to the terms and conditions of the original providers and are not part of the Software. Customer’s license rights to the Software are limited to those expressly granted by this Agreement. The Software is licensed and not sold; Company, or its licensors, own all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software.
Customer shall not (and shall not allow any third party to): (i) modify or create derivative works of the Software without the express written consent of Company; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions); (iii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party; (iv) publish any results of benchmark tests run on the Software or disclose Software features, errors or bugs to a third party without Company’s prior written consent; (v) import the Software into any jurisdiction requiring disclosure of source code; (vi) download or use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Department of the Treasury, OFAC, or any other U.S. or foreign government entity; or (vii) use the Software, or any of Company’s intellectual property rights in the Software, for any purpose other than Customer’s evaluation and testing of the Software.
This Agreement is effective as of the Effective Date and shall automatically expire on the Evaluation End Date specified in Exhibit A. Customer shall have the right to evaluate and test the Products for the Term without limitation. Upon the request of Customer, Licensor may, in its sole discretion, extend the Term for one or more thirty (30) calendar day increments. Any such extension shall be affected by an email exchange between the authorized representatives of the parties or by a written extension to this Agreement executed by each of the parties hereto. If the product is used after the conclusion of the trial period Effective Dates the Agreement will automatically be extended for 12 calendar months at the then current prices listed on Company's websites. During the production term Customer is not obligated to any minimum number of impressions and is deemed to be a month to month agreement.
a. Either party may terminate this Agreement with 30 (30) days' prior written notice given to the other party. This Agreement will automatically terminate at the end of the Term or if Customer fails to comply with any of the terms of this Agreement.
b. Upon termination of this Agreement for any reason, including expiration of the Term, all rights and licenses granted by one party to the other party under this Agreement will terminate automatically, and the Customer agrees to: (i) discontinue all use of the Products; (ii) return of any Confidential Information and; and (iii) provide Company with certification that all copies of the Software, whether partial or complete, have been deleted from Customer’s storage media. The terms and conditions of Sections 1, 2, 4, 7 through 10, 12, 13, and any payment obligations, and right of action for breach of this Agreement that may have arisen prior to termination or expiration, shall survive any termination or expiration of this Agreement.
Customer agrees to provide to Company reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports, enhancement requests and test results, based on Customer’s evaluation and testing of the Products (“Feedback”). Customer grants Company, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid license: (i) to make, use, copy, modify, and create derivative works of, the Feedback as part of any product or offering; (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent or lease the Feedback (and derivative works thereof) as part of any Company offering; and (iii) to sublicense to third parties the foregoing rights, including without limitation the right to sublicense to further third parties. Company shall utilize any Feedback in an anonymous manner, and no attribution to Customer shall be given for any Feedback provided unless agreed to in advance and in writing between the parties.
8. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, THE PRODUCTS, INCLUDING ANY OPEN SOURCE SOFTWARE DELIVERED THEREWITH, ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
9. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH COMPANY’S OBLIGATIONS UNDER SECTION 14 (“INDEMNIFICATION”), CUSTOMER AGREES THAT COMPANY AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCTS OR SOFTWARE OR SERVICES) WHICH ARISE FROM THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF THE PRODUCTS, WHETHER THE CLAIM FOR DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
a. If Company and Customer have previously entered into a mutual non-disclosure agreement that remains in effect as of the date hereof (a “Pre-existing NDA”), the terms of such Pre-existing NDA are incorporated herein by this reference. If there is no Pre-existing NDA is in place, then the terms set forth in subsection (b) below apply.
b. The Software constitutes confidential and proprietary information belonging to Company or Company suppliers. As a result of this Agreement, Customer may receive other confidential or proprietary information (collectively, “Proprietary Information”) belonging to Company. Proprietary Information may include, but is not limited to, software programs, the concepts contained in such programs, documentation, test results and business or technical plans. The following information shall not constitute Proprietary Information: any information that: (i) was previously known to Customer free of any obligation to keep it confidential; (ii) is or has become publicly known, through no wrongful act of Customer; (iii) was rightfully received by Customer from a third party who is under no obligation of confidence to Company; or (iv) was independently developed by Customer without use of Proprietary Information that has been disclosed by Company pursuant to this Agreement. Except to the extent authorized in this Agreement or by Company in writing, Customer agrees: (a) not to make any other use of the Proprietary Information; (b) not to duplicate the Proprietary Information; (c) not to make the Proprietary Information available to any third party in any form; and (d) to safeguard the Proprietary Information to the same extent that Customer protects its own confidential or proprietary information of similar importance. Customer may disclose relevant aspects of the Software to its employees and contractors if necessary to Customer’s evaluation, provided that the Software is not used, disclosed, or distributed by such employees or contractors in violation of this Agreement. Results of tests of such Software run by Customer may be disclosed to third parties only with Company’s prior written consent.
c. Any and all Feedback shall be treated by Customer as Proprietary Information of Company in accordance with either the Pre-existing NDA or subsection (A) above, except to the extent that Customer obtains Company’s prior written consent to disclose it.
11. U.S. GOVERNMENT END USERS
The Software is a “commercial item,” as that term is defined in 48 C. F. R. 2.101 (Oct. 1995), consisting of “commercial computer software,” “commercial computer hardware” and “commercial computer software documentation” as such terms are used in 48 C. F. R. 12.212 (Sept. 1995). Consistent with 48 C. F. R. 12.212 and 48 C. F. R. 227.7202-1 through 227.7202-4 (June 1995). All U. S. Government end users acquire the Software with only those rights set forth in this Agreement.
a. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Customer or any successor in interest, whether by operation of law or otherwise, without the prior written consent of Company and any attempt to do so shall be null and void. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed given (a) when personally delivered, (b) one day after being sent by overnight courier, except in the case of international deliveries, which shall be deemed to have been delivered two days after being sent by international courier, and (c) five days after being sent by prepaid certified or registered U.S. mail or express mail to the address of the party to be noticed set forth in this Agreement or such address as such party last provided to the other by written notice. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
b. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction 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.
c. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the Commonwealth of Massachusetts without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Any action arising from this Agreement shall be brought in the state or federal courts in and for the Commonwealth of Massachusetts and the parties consent to the exclusive jurisdiction and venue of such courts.
d. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.
e. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile or other electronic transmission.
f. The parties acknowledge and agree that this Agreement is subject to the U.S. Electronic Signatures in Global and National Commerce Act, the Singapore Electronic Transmissions Act, the U.K. Electronic Communications Act 2000 and any similar law in any other applicable jurisdiction that makes legally effective a contract in electronic form, and authorizes acceptance by means of an electronic signature or process.
g. Neither party is in breach of this Agreement for any cessation, interruption, or delay in the performance of its obligations hereunder (other than payment obligations) due to causes beyond its reasonable control including: earthquake, flood, fire, storm, or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, acts or threats of terrorism, disruption of public markets, war or armed conflict.
Company shall hold harmless, defend, and indemnify Customer, its affiliates and subsidiaries, and its and their respective present and former managers, directors, officers, employees, members, stockholders, representatives, and agents (each an “Indemnified Party”) from and against any and all damages, injuries, liabilities, settlements, royalties, penalties, fines, costs, expenses (including, without limitation, reasonable attorneys’ fees), and losses of every kind and nature whatsoever (collectively, “Losses”) incurred by an Indemnified Party arising from any third party claim, demand, action, lawsuit, or proceeding (a “Claim”) alleging that the Products or Services infringe the intellectual property rights of any third party. No settlement of any such Claim may be made without the Indemnified Party’s prior written consent to the terms of settlement, which consent shall not be unreasonably withheld or delayed. An Indemnified Party will have the right to participate in the defense of any such Claim at its own expense. If an Indemnified Party notifies Company of a Claim (“Claim Notice”), Company shall provide prompt assurance of its ability and intent to indemnify the Indemnified Party, to the Indemnified Party’s reasonable satisfaction, and Company shall commence to defend such Claim, at its sole cost and expense, within five days of said Claim Notice. If Company fails to provide such assurance or commence such defense within such 5-day period, in addition to the other rights and remedies available to the Indemnified Party at law or in equity, the Indemnified Party may, at its option, assume the defense or settlement of such Claim in its own name, and all recoveries from such Claim shall belong to the Indemnified Party, and all fees and costs (including reasonable attorneys’ fees) in defending such Claim and all damages or settlement costs arising therefrom, shall be Company’s sole responsibility.