These Ad Lightning, Inc. Standard Terms and Conditions (“ Standard Terms”) apply to users (each a “ User”) of the Software and Services (defined below) who have executed a Subscription Services Order Form and Recurring Payment Authorization (the “Order”) with Ad Lightning, Inc. (“Ad Lightning”). These Standard Terms are in addition to the terms and conditions contained in the Order. Ad Lightning and User are each referred to individually as a “Party” and collectively as the “Parties.” Together, the Order and these Standard Terms constitute the agreement of the Parties (the “Agreement”).
1. Definitions. The following terms have the meanings given those terms as hereinafter set forth:
1.1. “Documentation” means all related materials, documentation, and information delivered to User, including any published specifications for the Services.
1.2. “Feedback” means any ideas, suggestions, modifications, alterations, concepts, feedback, or suggestions, made by User to or about the Services or information furnished hereunder.
1.3. “Intellectual Property Rights” means (collectively): copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secret rights, rights of publicity, authors’ rights, moral rights, goodwill, and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country, or jurisdiction.
1.4. “Services” means collectively or individually, the services provided by Ad Lightning as set forth in Order, including, where applicable, any support services and/or professional services.
1.5. “Software” means Ad Lightning software products provided pursuant to these Standard Terms, together with all enhancements and updates, if any, which are generally made available by Ad Lightning to a User.
1.6. “User Content” means all text, images, data, and other content to which access has been provided by User or on behalf of User in connection with the Services.
2. Grant of License; Restrictions; Reservation of Rights.
License Grant. Subject to the terms and conditions of these Standard Terms, Ad Lightning hereby grants to User, and User hereby accepts from Ad Lightning, a non- exclusive,
User Restrictions. The license granted in these Standard Terms by Ad Lightning to User is conditioned upon User’s strict compliance with the following terms and conditions: (a) User may use the Software and Services only as expressly set forth in these Standard Terms; (b) User will not: (i) sell or lease the Software or Services to a
2.3. Reservation of Rights. Ad Lightning hereby reserves all rights not expressly granted to User in these Standard Terms.
3. Obligations of the Parties.
User’s Obligations. User will use the Software and Services for lawful purposes only, in compliance with all applicable laws and regulations and only as set forth in these Standard Terms. User will not upload, provide access to the Software or Services, sell the Software or Services, or transmit through the Software or Services any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. User will not upload or otherwise make available on or through the Software or Services any
3.2. Ad Lightning’s Obligations. Ad Lightning shall have no duty or obligation to maintain service levels for the Software, update the Software, or otherwise provide User support for the Software or Services, except as expressly provided in these Standard Terms or the applicable Order.
4. Fees; Payment.
4.1. Fees; Payment. Ad Lightning will charge User the fees set forth in the applicable Order. Ad Lightning will automatically charge the credit card set forth in Order on a monthly basis, as specified in the Order.
4.2. Suspension of Service. If for any reason Ad Lightning is unable to charge User’s credit card for authorized fees, Ad Lightning may, without limiting its other rights and remedies, suspend User’s access to and use of the Software and Services until payment has been made.
Taxes. Unless otherwise stated, fees do not include any direct or indirect local, state, or federal taxes, levies, duties or similar governmental assessments of any nature, including
5. Intellectual Property Rights; License .
Ad Lightning or its licensor, are the sole and exclusive owner of all right, title, and interest in and to the Software, Services, and Feedback, and all copies thereof including all enhancements, error corrections, new releases, updates, and modifications thereto including, but not limited to, ownership of all Intellectual Property Rights. This Agreement does not provide User with title or ownership of the Intellectual Property Rights, but only a right of limited access and use. User recognizes and acknowledges the exclusive right of Ad Lightning and/or its licensors in and to all Intellectual Property Rights and that such Intellectual Property Rights are the sole and exclusive property of Ad Lightning and/or its licensors. Solely for the purpose of Ad Lightning providing the Software and Services, and for no other purpose, User hereby grants Ad Lightning a limited,
6. Representations and Warranties.
6.1. Authority. Each Party represents and warrants that it has the right to (a) enter into these Standard Terms, and (b) grant the rights and licenses herein granted.
User’s Content. User represents and warrants to Ad Lightning that Ad Lightning’s use of the User Content as authorized under these Standard Terms will not in any way violate any law or constitute an infringement of any Intellectual Property Rights or other violation of any nondisclosure agreements, and/or other right of any
6.3. Warranty Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY LAW, User
ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, SERVICES AND DOCUMENTATION ARE PROVIDED TO USER ON AN “AS IS” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. AD LIGHTNING EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF
7. Damages and Limitation of Liability .
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SOFTWARE OR SERVICES, EVEN IF THAT PARTY IS A D V I S E D O F T H E P O S S I B I L I T Y O F S U C H D A M A G E S . E X C E P T F O R CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR CLAIMS RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR OTHERWISE. IN ANY EVENT, AD LIGHTNING’S ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY USER TO AD LIGHTNING UNDER THIS AGREEMENT.
Confidentiality. Each Party agrees that it will not disclose to any
9. Indemnification .
Indemnification by Ad Lightning. Ad Lightning will defend User against any claim, demand, suit or proceeding made or brought against User by a
Indemnification by User. User will defend Ad Lightning against any claim, demand, suit or proceeding made or brought against Ad Lightning by a
9.3. Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section 9.
10. Monitoring; Data Collection .
10.1. Monitoring. Ad Lightning will have the right, but not the obligation, to monitor the content of the Software or Services to determine compliance with these Standard Terms and any operating rules established by Ad Lightning and to satisfy any law, regulation or authorized government request. Ad Lightning will have the right in its sole discretion to remove any material submitted to or through the Software or Services.
Data Collection. User acknowledges and agrees that: (a) Ad Lightning may collect and analyze
11. Term and Termination .
11.1. Term. The term of the Agreement commences on the date User signs the Order (the “Effective Date”) and, unless earlier terminated in accordance with these Standard Terms, shall continue until the last day of the month in which the recurring payment “End Date” specified in the Order falls, or if no recurring payment “End Date” is specified in the Order, for a period of one year (the “Initial Term”). If no recurring payment “End Date” is specified in the Order, then, at the end of the Initial Term, the Agreement shall automatically renew for successive additional terms of one year (each a “Renewal Term”). The Initial Term and each Renewal Term (if any) constitutes the “Term” of the Agreement.
Termination. The Agreement may be terminated by either Party for any reason or no reason by providing thirty (30) days’ written notice to the other Party. The termination shall become effective on the last day of the month in which the
Effect of Termination or Expiration. Upon termination or expiration of the Agreement all licenses granted herein shall be immediately revoked and terminated. The rights and obligations of the Parties set forth in Sections 1,
11.4. Notice. All notices shall be in writing and shall be addressed:
if to Ad Lightning, to:
Ad Lightning, Inc.
111 S Jackson St., Suite 500 Seattle, WA 98104
if to User, to:
the “Customer Address” indicated on the Order
or to such other address as a Party may have specified by earlier notice to the other Party. A notice given in accordance with this agreement will be effective upon the earlier of actual receipt and the fifth business day following mailing or transmission by email.
12. Miscellaneous .
In the event any one (1) or more of the terms or provisions of the Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of Agreement will not in any way be affected or impaired, except that, in such an event, the Agreement will be deemed revised in order to provide the Party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted. User will carry out its duties and obligations under the Agreement as an independent contractor and not as a joint venture with Ad Lightning or an agent of Ad Lightning, and User’s performance will not be subject to supervision or control by Ad Lightning, but will be subject solely to the terms of these Standard Terms. Subject to the further provisions of this Section 12, the Agreement will be binding upon and will inure to the benefit of the Parties hereto, and their respective legal representatives and successors. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and any and all prior understandings and agreements, expressed or implied, between the Parties hereto in respect of the subject matter hereof are superseded hereby. No waiver of any breach of these the Agreement will be effective unless it is in a writing which is executed by the Party charged with the waiver. No delay in enforcing any right or remedy as a result of a breach of the Agreement will constitute a waiver thereof. The Agreement may not be modified or amended except by an instrument in writing signed by all of the Parties hereto. The Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Washington, excluding its choice of law provisions. All disputes under the Agreement will be resolved exclusively by a state or federal court located in the state of Washington and each Party agrees to submit to the personal jurisdiction of such courts and waives all objections to personal jurisdiction therein.