(a) This Agreement will apply to Customer’s use of the Terminus online software service (“Service” or “Services”). Each of Customer and Terminus is a “Party” to this Agreement.
(b) By accepting this Agreement, either through executing an Order Form that references this Agreement, or by signing this Agreement directly, Customer agrees that its use of the Services is subject to and bound by these terms and conditions.
(c) If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. You may not use the Service if you do not have such authority.
(e) For terms governing Terminus’ delivery of internet advertising placement Services, please refer to our Addendum to IAB Standard Terms at https://terminus.com/IABaddendum/. Such Addendum to IAB Standard Terms is incorporated into this Agreement by this reference.
(f) Terminus shall provide implementation services, training services, web advertisement creative services and other professional services (“Professional Services”) as agreed by the Parties in an Order Form. The scope of such Professional Services shall be agreed in separate Declarations of Scope executed by the Parties (each a “DOS”). Upon execution of a DOS by the Parties, the DOS shall become a part of and shall be subject to the terms of this Agreement. Terminus shall control the means, methods and manner of its performance of the Professional Services delivered under a DOS. Other than as specifically set forth in a DOS, Terminus owns all right, title and interest in and to any work product developed as a result of the Professional Services; provided that Terminus grants Customer a limited, non-sublicensable, non-exclusive license to access and use such work product in connection with Customer’s authorized use of Services under this Agreement. Terminus may utilize subcontractors in its provision of the Professional Services; provided that Terminus shall remain liable for all acts and omissions of such subcontractors.
(g) THE DATA PROCESSING ADDENDUM at https://terminus.com/dpa (“DPA”) ACCOMPANIES THESE TERMS OF SERVICE AND SETS FORTH OTHER TERMS OF OUR AGREEMENT THAT APPLY TO THE EXTENT ANY INFORMATION YOU PROVIDE TO TERMINUS INCLUDES PERSONAL DATA.
Terminus hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable right and license to use the Service for Customer’s internal business purposes, for the term specified in the applicable Order Form, subject to the terms of this Agreement and the applicable Order Form. Terminus reserves all rights, title, and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted hereunder.
- Availability and Support
(a) Terminus will provide the Service on a best efforts basis in a manner consistent with marketing technology industry standards, which includes reasonable service interruptions due to Excusable Delays or scheduled maintenance. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Terminus’ reasonable control (collectively referred to as “Excusable Delays”). Except for reasonable service interruptions due to Excusable Delays or regularly scheduled maintenance, the Service shall be available not less than 99.9% of the time, on a monthly basis.
(b) Terminus will provide the following support services to Customer related to the Service for the duration of the Agreement: (a) email and telephone support regarding operation and use of the Service during Terminus’ normal business hours (8:30AM to 8:30PM EST), and (b) programming to correct any demonstrated errors in the Service necessary to enable reasonable use of the Service. Customer should promptly report any errors in the operation of the Service to Terminus.
(a) Customer will be exclusively responsible for the content of all communications sent using the Service.
(b) Terminus does not own any data, information or material that Customer submits to the Service in the course of using the Service (“Customer Data”). Customer, and not Terminus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Terminus shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Terminus will make available to Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Terminus reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Terminus shall have no obligation to maintain or forward any Customer Data. The foregoing provisions of this Section 4(b) are subject to any requirements of applicable law.
Customer shall use the Service for internal business purposes only as contemplated by this Agreement and shall:
(a) not use the Service if, in Terminus’ reasonable determination, Customer is or becomes a direct competitor of Terminus or in violation of or beyond the scope of license granted herein;
(b) not use the Service in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party;
(c) not permit any third party to access the Service, or otherwise sell, rent, license, provide, or distribute the Service; provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with Customer to: (i) access and use the Services solely to perform services for Customer; (ii) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (iii) limit access to the Service only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon services for Customer;
(d) not use the Service to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
(e) not create derivative works from the Service, or otherwise reverse engineer or access the Service in order to (i) build a competitive product or Service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service;
(f) not use the Service in any manner that could damage, disable, overburden, impair or otherwise interfere with Terminus’ infrastructure or interfere or attempt to interfere with the proper working of the Service;
(g) not attempt to gain unauthorized access to the Service or related systems or networks, or systematically access the Service using “bots” or “spiders”;
(h) not use or distribute the Service in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations.
The restrictions set forth in this Section 5 shall survive termination of this Agreement.
In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Terminus’ other rights and remedies, Terminus may immediately, with written notice (email is sufficient) suspend Customer’s access to the Service.
Customer will pay the Service subscription fee (the “Platform Fee”) and all other fees due for Services according to the prices and terms listed in the Order Form. All fees are non-cancelable and nonrefundable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Terminus net income). In the event Terminus pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Terminus.
- Intellectual Property
Terminus alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Terminus technology and the Service, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service (all of the foregoing being the “Rights”). To the extent that any such Rights are not deemed owned by Terminus pursuant to the prior sentence, Customer hereby irrevocably assigns and transfers all such Rights to Terminus. The Terminus name, the Terminus logo, the marks of Terminus’ licensors, and the product names associated with the Service are trademarks of Terminus or third parties, and no right or license is granted to use them. As between Customer and Terminus, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto; provided that Customer hereby grants a license to Terminus to use de-identified Customer Data aggregated with de-identified data from other Terminus customers for the sole limited purpose of providing and enhancing the Service during the term of this Agreement.
- Representations and Warranties
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract or commitment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Terminus represents and warrants that (a) it will provide the Service in a manner consistent with marketing technology industry standards reasonably applicable to the provision thereof; (b) the Service will perform substantially in accordance with the online Terminus help documentation under normal use and circumstances; and (c) it will utilize commercially reasonable efforts to establish and maintain appropriate administrative, physical, organizational and technical safeguards that protect against the unauthorized destruction, loss, access, use, storage, alteration or disclosure of Customer Data in the possession of Terminus or to which Terminus may have access; such safeguards will include, without limitation, (i) an information security program based on marketing technology industry-standard practices to safeguard Customer Data; (ii) industry-standard physical security of all premises in which Customer Data will be processed or stored; and (iii) an industry-standard network security program in respect of Customer Data (which includes, without limitation, encryption).
In addition, Customer represents and warrants that (x) its use of the Service will comply with all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy; and (y) it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data.
(a) The Parties each acknowledge that the other Party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective Party, regardless of whether they may be copyrighted, patented or trademarked.
(b) During the term of this Agreement, each Party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each Party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving Party treats its own confidential information (but in no event less than reasonable care). Each Party agrees not to use any Confidential Information of the other for any purpose other than exercising its rights and fulfilling its obligations hereunder and not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving Party hereunder, (ii) was already rightfully in the possession of the receiving Party when received by the disclosing Party, (iii) is received from a third party without breach of any obligation owed to the disclosing Party or (iv) was developed independently by the receiving Party by individuals without access to the disclosing Party’s information.
(c) The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, and the disclosing Party is not contesting the disclosure, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) The obligations of the Parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.
(e) Terminus and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other Party may be irreparable; therefore, the Parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.
(a) If Customer fulfills its notice obligations under Section 11(d), subject to the general liability limitations set forth below Terminus shall defend Customer against (or at its expense, and with the prior written consent of Customer, not to be unreasonably withheld, settle) any third party claim, suit, action or proceeding alleging that the Service infringes upon any intellectual property rights of a third party (“Infringement Claim”) and shall hold Customer harmless from and against all losses awarded against Customer in a final judgment arising out of or resulting from any Infringement Claim. Where Customer notifies Terminus of an Infringement Claim or Terminus determines in its reasonable discretion that there may be an Infringement Claim related to the Service, Terminus shall have the option at its own expense to (i) procure the right for Customer to continue using the Service; (ii) replace or modify the Service to eliminate the infringement without materially reducing Service functionality or performance; or (iii) refund the Platform Fee the Customer actually paid for the Service for the period of time that such Service was not usable, in which case this Agreement and Customer’s rights in the Service shall terminate.
(b) Customer shall defend, indemnify and hold harmless Terminus and its licensors, parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against all losses awarded against Terminus in a final judgment arising out of or resulting from any private or other third party claim, suit, action or proceeding arising out of Customer’s use of the Service in any manner not permitted by this Agreement or a claim related to the Customer Data, including that Customer did not have the authority to provide the Customer Data or that the Customer Data infringes the rights of, or has caused harm to, a third party.
(c) Neither Party will have any obligation to the other for an infringement under this section if such alleged infringement claim arises from the other Party’s materials, from any modifications or changes made by the non-indemnifying Party, or from any combination with materials, products or services not provided by the indemnifying Party.
(d) The Party seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any claim and provide the indemnifying Party with sole control over the defense or settlement of the claim and such information and assistance to defend or settle the claim as the indemnifying Party may reasonably request. The indemnifying Party may not settle any claim in a manner that adversely affects the indemnified Party’s rights or admits liability on the part of the indemnified Party without the indemnified Party’s prior written consent.
(e) This Section 11 sets forth each Party’s sole and exclusive remedy for any claim for which indemnification is sought.
- Disclaimer, Limitation of Liability, and Insurance
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE AND ALL DATA IS PROVIDED ON AN “AS IS” BASIS AND TERMINUS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. TERMINUS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (iii) THE SERVICE WILL RESULT IN SALES, (iv) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TERMINUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TERMINUS AND ITS LICENSORS.
(b) EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR FOR DAMAGES ARISING OUT OF A PARTY’S WILLFUL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. EXCEPT FOR LIABILITY ARISING OUT OF A BREACH BY CUSTOMER OF ITS USE RESTRICTIONS UNDER SECTION 5, OUT OF EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR OUT OF A PARTY’S WILLFUL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10, IN NO EVENT WILL THE AGGREGATE LIABILITY THAT EITHER PARTY AND ITS SUPPLIERS (INCLUDING LICENSORS AND THIRD PARTY PROVIDERS) MAY INCUR IN ANY AND ALL ACTIONS OR PROCEEDINGS UNDER THIS AGREEMENT EXCEED THE TOTAL PLATFORM FEES THAT TERMINUS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, THE AGGREGATE LIABILITY THAT TERMINUS MAY INCUR, WHETHER FOR DIRECT DAMAGES OR FOR INDEMNIFICATION, ARISING OUT OF ANY THIRD PARTY INCURSION INTO ANY COMPUTER OR DATABASE MAINTAINED BY OR ON BEHALF OF TERMINUS SHALL NOT EXCEED FIVE TIMES (5X) THE TOTAL PLATFORM FEES THAT TERMINUS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(c) During the term of this Agreement, Terminus at its sole cost and expense shall maintain the following insurance coverage and shall provide written evidence thereof to Customer upon its request therefor:
(i) Commercial General Liability on an “occurrence basis”, with a limit of not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage liability.
(ii) Workers’ Compensation as provided for under any workers’ compensation or similar law in the jurisdiction where work is performed.
(iii) Employer’s Liability with a limit of not less than $500,000 by accident or disease.
(iv) Umbrella/Excess Liability with a minimum limit of $3,000,000 in excess of the insurance under policies indicated in this section.
(v) Technology Errors and Omissions/Cyber Liability including Network Security/Privacy covering liability for loss or damage due to an act, error, omission, or negligence and for claims arising from unauthorized access to or use of the Services in an amount of at least $2,000,000. Such insurance shall cover network security and privacy risks.
- Term and Termination
(a) Initial Term. The initial term of this Agreement shall commence on the start date agreed to on the applicable Order Form. Thereafter, unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the end of the then-current term, this Agreement shall renew for additional period(s) equal to the renewal term agreed to on the applicable Order Form. If a renewal term is not present on the applicable Order Form the Agreement shall renew for the duration of the initial term.
(b) Termination for Cause. Either Party may terminate the Agreement for cause upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period.
(c) Termination for Insolvency. In the event that either Party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, then such Party will immediately give notice thereof to the other Party, and the other Party may terminate the Agreement upon written notice.
(d) Payment Upon Termination. Upon any Termination for Cause by Terminus, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall termination by Customer or Terminus relieve Customer of the obligation to pay any fees payable to Terminus for the period prior to the effective date of termination.
(e) Assignment. This Agreement is binding on the Parties hereto and their respective successors and permitted assigns. Either Party may assign this Agreement to: (i) an affiliate controlled by, controlling, or under common control with the assigning Party, or (ii) in connection with a merger or consolidation (so long as the assignment is to the newly merged or consolidated entity, and such entity is not a competitor of the non-assigning Party) or all or the sale of substantially all of its assets (so long as the assignment is to the acquirer of such assets, and such acquirer is not a competitor of the non-assigning Party). Any assignment in violation of this section is void.
(f) Force Majeure. Terminus’ failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that Terminus is not able to provide Service during such event, during such period Customer’s obligation to pay for the Service shall be suspended.
(g) Surviving Provisions. Sections 5 (Restrictions), 7 (Fees), 8 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Disclaimer, Limitation of Liability, and Insurance), 13.d (Payment Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.
(a) Terminus may give notice to Customer by means of a general notice on the Service portal, electronic mail to Customer’s address on record in Terminus’ account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Terminus’ account information. All notices to Terminus shall be sent to Terminus Software Inc., Attn: CFO, 3340 Peachtree Rd NE, Suite 300, Atlanta GA 30326.
(b) This Agreement shall be governed by Georgia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia. If any legal action is necessary to enforce the terms of the Agreement, the substantially prevailing Party shall be entitled to reasonable legal fees and costs.
(c) No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
(d) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. However, in case of conflict, the terms of the executed Order Form shall take precedence over the body of this Agreement.
(e) No text or information set forth on any other purchase order, preprinted form or document (other than the executed Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
(f) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Terminus as a result of this Agreement or use of the Service.
(g) Terminus will be entitled to display Customer’s corporate name and logo on Terminus’ website and marketing materials and to identify Customer as a Terminus customer.
(h) No rules of construction are intended or shall be applied in the interpretation of this Agreement and both Parties hereto shall be deemed joint authors hereof for all purposes.
If you have any questions about these terms of service, please contact us and we will be more than happy to clarify and assist you in any way possible: firstname.lastname@example.org, or by mail at:
Terminus Software, Inc.
3340 Peachtree Rd NE, Suite 300
Atlanta GA 30326