3.Customer Responsibilities. As part of the registration process, Customer will be required to share certain social account permissions from social platforms Customer selects to link with the Naytev account (“Account”). Failure to meet Customer Responsibilities, as listed herein, may prevent the delivery of Services and/or result in additional fees. Customer shall: (a) Ensure that its Users have access to a reliable high-speed internet connection and an up to date version of one of the following internet browsers: Chrome (recommended), Mozilla, Internet Explorer or Safari. (b) Ensure all social profiles (i.e. www.facebook.com/CompanyPage) and advertising accounts (i.e. account with Facebook Ads Manager) which Customer has selected to be used with Naytev are active, funded and in good standing. (c) Manage its Users and ensure Users have all required ad account and social profile permissions necessary to perform and receive Services hereunder. Customer is directed to visit http://success.naytev.com for guidance on how to provide Users with the required permissions. (d) Create and manage the target ad audiences within Customer’s ads manager account. Naytev distributes ads to only those audiences created and selected by Customer. (e) Install and manage any social network SDKs and ‘TrackingPixels’ required for advertising with App and website event goals. (f) Ensure that Customer and its Users do not modify the ad campaigns created with Naytev outside of Naytev’s proprietary technology platform. (g) Publish the best performing ads to Customer’s desired social profiles through Naytev’s platform to enable full service performance and complete reporting. (h) Implement and manage Naytev’s API if Customer chooses to use this optional API feature. (i) Customer shall not, and shall not allow Customer’s Users to (i) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party not permitted hereunder; (ii) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) orin any manner that interferes with or disrupts the integrity or performance of the Services or its components, or (iii) modify, adapt or hack the Services to, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. (j) Customer shall promptly notify Naytev if you learn of, or suspect, a security breach related to the Services. (k) Customer is solely responsible for, and shall bear all risk associated with all content, information and materials published on or available through or otherwise associated with Customer’s website, Customer’s social accounts or other digital properties or that Customer otherwise uses or exploits in connection with theServices (collectively “Customer Content”). Naytev reserves the right, but does not have an obligation, to remove Customer Content from the Services which violates the terms of this Agreement. (l) Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Equipment”) and shall comply with all configurations and specifications necessary to access the Services. Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including administrative and User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. (m) Customer represents and warrants that it has obtained all necessary consents, and is in compliance with applicable laws, with respect to any user-level data or Customer Content provided or made available to Naytev hereunder. Customer grants to Naytev the right to use the data obtained pursuant to providing the Service, for support and in an aggregated, anonymous form, in order to enhance Naytev’s ability to deliver the Service. (n) Customer agrees not to access the Services by any means other than through the interface that is provided by Naytev for use in accessing the Services. (o) Sharing or publishing of certain kinds of Customer Content may be prohibited by other services and third party platforms. It is solely Customer’s responsibility to comply with the rules for services where Customer distributes Customer Content.
4.Fees; Taxes. Fees and payment terms are as documented on the applicable Order Form. Customer agrees to pay Service Fees in U.S. Dollars by ACH, WireTransfer, or Credit Card. Customer is responsible for a 3% processing fee if Customer chooses to pay by Credit Card. For questions, contact firstname.lastname@example.org.The Service Fees during any Renewal Term will be no more than five percent (5%) higher than that during the immediately prior term for the same number ofUsers, for the same functionality, unless Naytev has provided Customer with written notice of a different price increase at least sixty (60) days prior to the commencement of the next renewal term, or unless the fees in such prior period were designated on the Order Form as ‘promotional’. Customer will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Services Customer purchases. Customer shall reimburse Naytev for any sales or use taxes that Naytev is required to collect in connection with the provision of Services hereunder to Customer. Naytev will pay all taxes on its income and all taxes and insurance associated with its personnel. Customer shall reimburse Naytev for any sales or use taxes that Naytev is required to collect in connection with the provision of Services hereunder to Customer. If Customer disputes any charge, Customer must provide written notice to Naytev within thirty (30) days of the applicable invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
5. Term; Termination. The term is as documented on the applicable Order Form. If at any time, a party breaches the term of this Agreement, the non-breaching party shall provide the breaching party with written notice and allow fifteen (15) days to cure. If the breach is not so cured, the Agreement and applicable Order Form shall terminate. Customer is only entitled to a refund of fees for Services paid for and not yet provided if Naytev breached and did not timely cure.
6. Confidentiality. Each party receiving confidential information (“CI”) hereunder (“Recipient”) shall (i) hold the CI in strict confidence, (ii) exercise a reasonable degree of care, not less than that which it applies to its own information of similar nature and confidentiality, in safeguarding the CI against any and all loss, theft or other inadvertent disclosure, and (iii) take such steps as are necessary to ensure and maintain such confidentiality. Each Recipient shall not disclose, transfer or in any way divulge, directly or indirectly, any CI, under any circumstances or by any means, to any third party without the prior written consent of the holder of the CI (“CI Holder”) except that each party may disclose CI to its employees, consultants, agents, contractors and affiliates who have a need to know the information and who undertake a similar obligation in writing to protect the confidentiality of the CI. The Recipient shall remain responsible to the CI Holder for any breaches of confidentiality by its employees, consultants, agents, contractors and affiliates to whom the CI was provided. Other than as is necessary for the performance of its obligations under this Agreement, Recipient shall not copy, transmit, reproduce, summarize, quote or make any commercial use whatsoever of any CI without the prior written consent of CI Holder. The CI shall remain the exclusive property of CI Holder.Upon the termination of the parties’ relationship, or at any time requested byCI Holder, Recipient shall promptly return to CI Holder (or if permitted by theCI Holder, certify the destruction of) all CI that is in the control or possession of Recipient or those permitted third parties which were provided such by the Recipient. CI will not include information that: (a) is or becomes publicly available through no act or omission of Recipient; (b) is disclosed to Recipient by a third party having no obligation of confidentiality with respect thereto; (c) is disclosed with CI Holder’s written consent and only to such extent; (d) is independently developed byRecipient without use of or reference to CI; or (e) is required to be disclosed by Recipient by applicable law or legal process, provided that unless Recipient is legally restricted, it will notify CI Holder prior to such disclosure and will reasonably cooperate with CIHolder, at CI Holder’s expense, in CI Holder’s efforts to seek a protective order.
7.Customer Representations. Customer represents and warrants that itsContent will not: (a) Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others. (b) Violate the privacy, publicity, or other rights of third parties. (c) Be false or inaccurate at any time.(d) Be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion. (e) Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others. (f) Misrepresent the source of the Customer Content. (g) Contain any virus, Trojan horse, worm, time bomb, cancelbot, or other disabling device or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. (h)Advocate or encourage any illegal activity. (i) Have the potential to create liability for Naytev or cause Naytev to violate the requirements of or to lose the services, in whole or in part, of Naytev’s Internet service providers or other suppliers. (j) Advocate or associate Naytev with any activity that breaches the rules of third-party platforms used in connection with Services.
8. Disclaimer. NAYTEV EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH CUSTOMER CONTENT AND ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED BY CUSTOMER. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OFANY KIND, AND NAYTEV EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT NAYTEV DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, ANDNO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM NAYTEV OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.USE OF THE SERVICES ARE AT CUSTOMER’S OWN RISK
9.Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NAYTEV ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT,INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA; OR FOR ANY DIRECT DAMAGES,COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER FOR THE APPLICABLE SERVICE IN THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISETO THE CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. The provisions of this section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement. Some States do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply toCustomer. In these States, Naytev’s liability will be limited to the greatest extent permitted by law.
By Naytev: Naytev agrees to defend, hold harmless and indemnify Customer from damages and losses arising from a claim, action, suit, or proceeding (“Claim”) asserted against Customer by a third party based on a claim that the Service as used as permitted hereunder, infringes any valid United States patent or copyright of such third party, but only to the extent that Customer’s use of the Service was in accordance with the terms of this Agreement. Naytev’s indemnification obligations are conditioned upon Customer: (a) giving Naytev prompt written notice of any Claim for which Customer is seeking indemnity hereunder, provided, however, that any delay in providing such notice shall not relieve the Naytev of its obligations to the extent Naytev is prejudiced by such delay; (b) Naytev has sole control of the defense of the Claim; and (c) Customer provides to Naytev, at Naytev’s expense, with assistance necessary to perform Naytev’s obligations hereunder. If the Service becomes or, in Naytev’ opinion, is likely to become the subject of an injunction, Naytev may, at its option, (i) procure for Customer the right to continue using such Service, (ii) replace or modify such Service so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to Naytev, then (iii) terminateCustomer’s license of access to the allegedly infringing Service and refund any pre-paid amounts for any unused portion of the Term. The foregoing is Naytev’s sole liability and Customer’s sole remedy for any infringement by the Service and states the entire liability of Naytev as provided. The foregoing indemnification obligations set forth herein above shall not apply to: (i) Service modified by any party other than Naytev, if the alleged infringement relates to such modification, (ii) Service combined or bundled with any non-Naytev products, processes or materials where the alleged infringement would not have occurred but for the creation of such combination,(iii) the use of a version of the Service other than the version that was current at the time of such use, as long as Naytev shall have made availableCustomer with such non-infringing version, (iv) Service created to the specifications of Customer when the infringement would not have occurred but for such specifications provided by Customer; (v) infringement or misappropriation of any proprietary right in which Customer has an interest; or (vi) any claim involving Customer Content.
By Customer: Upon demand by Naytev, Customer agrees to and shall defend, hold harmless and indemnify Naytev, Naytev’s subsidiaries, affiliates, licensors and their respective officers, agents, partners and employees, from and against any loss, liability, costs (including reasonable attorneys’ fees), damages, expenses, claims, or demands, made by any third party due to or arising out Customer’s use of the Service in breach of the licensed right; and/or arising from a breach of these Terms; and/or Customer Content.
11. Feedback. Naytev appreciates it when Customer, Users or individuals (each a “Submitter”) in any form or any manner, sends or communicates to Naytev, or posts to Naytev forums, comments or suggestions about Naytev’s Service or website (“Feedback). Should any Submitter choose to make a submittal, Naytev may use or utilize any Feedback without any obligation or any kind to the Submitter. Further, by submitting Feedback to Naytev, Submitter hereby assigns, to Naytev all of their right, title and interest inFeedback. In the event such assignment may not be valid, the Submitter agrees and grants to Naytev a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by the Submitter relating to theService.
12. Legal Clause. (a) This Agreement shall be governed by and construed in accordance with the laws of the State ofCalifornia, USA, without regard to its conflicts of law provisions. The parties hereby consent and agree that the sole and exclusive jurisdiction and venue for actions related to this Agreement shall be in the State or Federal courts located in San Francisco, California. The Convention for the International Sale of Goods shall not apply. (b) Section headings are for ease of reference only. (c) This Agreement does not create third party beneficiary rights to the Services or to any third party product made available through theService. (d) Naytev's failure to enforce a provision is not a waiver of its right to do so later. (e) If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable and the term will be substituted reflecting the party’s intent as closely as possible. (f) Customer may not assign any of Customer’s rights hereunder without the prior written authorization of Naytev which shall not be commercially unreasonably withheld and any such attempt is void. Naytev may freely assign its rights to any successor in interest of any business associated with theService. (g) Those clauses which by their nature are intended to survive termination of the Agreement shall so survive including 4; 6; 9; 12; 13 and 14. (h) Naytev andCustomer are not legal partners nor agents and neither party shall have the power or authority to bind the other; instead, the relationship is that of independent contractors. (i) Each party represents that it has all necessary rights, powers, and authorities necessary to enter into this Agreement and perform its obligations hereunder. (j) Each party shall comply with all applicable local, state, national and foreign laws, rules and regulations (including applicable export laws and regulations) while performing under this Agreement and using the Service.Without limiting the foregoing: (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (ii) Customer shall not permit users to access or use Service in violation of any U.S. export embargo, prohibition or restriction.
13. Miscellaneous. (a) Notices. Notice(s)’ shall be in writing, sent to the provided address and sent by overnight mail, courier, first-class mail or facsimile (followed by confirmation copy by email), and are deemed received upon delivery. (b) Use of Logo and Name. Customer authorizes Naytev to include Customer’s name and logo on the Naytev Site as a customer of Naytev.
14. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding Customer’s use of the Services. This Agreement may only be modified by a fully executed written amendment signed by the parties which references this Agreement or the Naytev Order Form. Terms on the Customer’s purchase orders or other ordering documentation or email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement and are of no force and affect even when signed by Naytev. Any attachments hereto are incorporated by reference into this Agreement and are an integral part hereof.This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the parties regarding the subject matter contained in this Agreement.