END-USER SOFTWARE LICENSE AND MARKETING SERVICES AGREEMENT
1 ACCEPTANCE OF TERMS
This website (“Site”) is a service of Adsoft Direct, Inc. (“Adsoft”). Adsoft provides access to this Site to either a person or entity (the “Customer”) that acknowledges acceptance of the following Terms and Conditions of Use (“Terms”) defined in this Authorized User Agreement (“Agreement”). By accessing this Site on the Internet or World Wide Web and/or acknowledging Customer acceptance of the Terms by clicking the “I Agree” button in connection with this Agreement on the Site, the Customer agrees to comply with and be bound by the Terms and Conditions of this Agreement as an Authorized User. In addition, when using Adsoft services, the Customer is subject to any posted guidelines or rules applicable to such services. All such guidelines and rules applicable to such services are hereby incorporated by reference in the Agreement.
2 DESCRIPTION OF SERVICE
Adsoft is a facilitator of integrated direct marketing services (“Service”) through the Site that includes software and programs that provide access to integrated marketing services and the creation, order and delivery of printed paper and non-paper products. Printed paper products shall include catalogs, letters, postcards, circulars, brochures, and pamphlets printed for the principal purpose of advertising or promoting goods or services and along with department store catalogs, brochures advertising automobiles, real estate and vacations, circulars advertising professional services, and coupon books (collectively, “Printed Sales Messages”). The Service provides Printed Sales Messages, other printed material and non-paper items (collectively the “Materials”), mailing and purchase of Materials and other marketing collateral using software, telecommunications, integration, processes and apparatus related to the production and delivery of the Service (collectively the “Technology”). Adsoft offers various other services related to the Service, as made available by Adsoft and its third party suppliers of Materials or Technology, (“Suppliers”) on the date of this Agreement and amended by Adsoft from time to time. Unless specifically stated otherwise, any and all new features, products, services, Materials or Technology currently available or subsequently made available to augment or enhance the current Service shall be subject to the Terms and Conditions of the Agreement.
1.1 GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN SECTIONS 10.1 AND 10.3 ABOVE, ADSOFT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CAPABILITY OF THE SERVICE OR THE ACCURACY, RELIABILITY, QUALITY, CURRENCY OR COMPLETENESS OF THE MATERIALS. THE SERVICE AND MATERIALS ARE FURNISHED ON AN “AS IS”, AS-AVAILABLE BASIS. ALL WARRANTIES OF ANY TYPE NOT EXPRESSLY STATED IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
3 LIMITED RIGHT TO USE THE SERVICE
Customer’s use of Adsoft Direct, Inc.’s Service is subject to the Terms set forth herein.
3.1 General Rights Granted; Restrictions. Customer is hereby granted a non-exclusive, non-transferable limited license to access and use the Service for Customer’s own internal use. This license includes the right to use the Service to design and order direct mail piece designs, production and delivery of direct mail advertising, related marketing services, and other Materials and use of the Service upon payment of the applicable fees.
3.2 Restrictions on Use. Except as expressly permitted, Customer may not, nor may Customer permit others, to copy any portion of the Service or to provide a third party access to the Service, or any portion thereof, unless such third party is an Authorized User. Adsoft grants permission to access and view the Site and to electronically copy and print in hard copy portions of the Site for the sole purpose of submitting an order. Any other use of the Site or the Materials, in whole or in part, without permission of the applicable rights holder is strictly prohibited.
3.3 Customer will be responsible for all charges for Service provided to third persons that Customer allows access to the Service under Customer’s account. If for any reason, Customer accesses Materials that have not been licensed to Customer, the Terms apply to Customer’s use of those Materials and Customer agrees to pay all applicable charges.
3.4 Service – Prohibited Uses. Customer may not, nor may Customer permit others to:
3.4.1 use or otherwise access the Service or the Materials, in whole or in part, without permission of the applicable rights holder, including without limitation any fashion that may infringe any copyright, intellectual property right, or proprietary or property right or interest of Adsoft, our Suppliers, or any third person; or
3.4.2 store in a retrieval system, transfer, modify, delete, upload, post, publish, distribute, reproduce, display to others, broadcast, sell, or sublicense the Service or its Materials, or any portion thereof; or
3.4.3 use the Service to develop a database, infobase, online or similar database, or other information resource in any media (print, electronic or otherwise, now existing or developed in the future) for sale to or use by others; or
3.4.5 use the Site or any of the Materials for any unlawful purpose, or to intentionally or unintentionally transmit to or through the Site any Material of any kind that Adsoft, in its sole discretion, believes may be unlawful, harmful, threatening, abusive, libelous, obscene, hateful, racially or ethnically or otherwise objectionable, or interfere with, abuse or otherwise violate the legal rights of any third party by using the Site.
3.4.6 Customer gives Adsoft permission to refuse at any time to print or place on the Site any Material that Adsoft, in its sole discretion, finds objectionable pursuant to this paragraph 3, or which in Adsoft’s sole judgment is an infringement on a trademark or copyright belonging to others; provided that Adsoft shall have no affirmative obligation to review the Site for any such infringement. Any unauthorized use of the Site or Material is illegal and could subject Customer to criminal prosecution as well as personal liability for damages in a civil suit.
Customer will indemnify and hold Adsoft, its parents, subsidiaries, affiliates, officers, partners, employees, agents and Suppliers harmless from any and all claims or demands, including reasonable attorney’s fees, arising out of Adsoft’s use of any artwork, logo or written text supplied by Customer or provided by Adsoft and from the Customer’s use of the Service or Materials, use of Customer’s account by any third party, violation of the Terms of usage by Customer, or the infringement by the Customer, or any third party using the Customer’s account, of any intellectual property or other right of any person or entity.
5 CUSTOMER CONDUCT
Customer’s use of the Site is subject to applicable local, state, federal and International law. Customer agrees not to use the Site or any of the Materials for any illegal purpose, or to intentionally or unintentionally transmit to or through the Site any Material of any kind that Adsoft, in its sole discretion, believes may be unlawful, objectionable, harmful, threatening, libelous, obscene, or hateful, or to interfere with, abuse or otherwise violate the legal rights of any third party by using the Site. Customer gives Adsoft permission to refuse at any time to print or place on the Site any Material that Adsoft, in its sole discretion, finds objectionable pursuant to this paragraph, or which in Adsoft’s sole judgment is an infringement on a trademark or copyright belonging to others; provided that Adsoft shall have no affirmative obligation to review the Site for any such infringement.
6 USE OF SITE MATERIALS
Adsoft grants permission to access and view the Site and to electronically copy and print in hard copy portions of the Site for the sole purpose of submitting an order. Any other use of the Site or the Materials, in whole or in part, without permission of the applicable rights holder is strictly prohibited, including without limitation: modification, republication, deletion, transmission, public performance, distribution, proxy caching, uploading, posting, reproduction for purposes other than those noted above, or other similar unauthorized exploitation of the Site or the Material. Without limiting the foregoing, any unauthorized use of the Site or Material is illegal and could subject Customer to criminal prosecution as well as personal liability for damages in a civil suit.
7 PRINTED SALES MESSAGES CERTIFICATION
Customer hereby certifies that the direct mail items designed and purchased are Printed Sales Messages and that the Printed Sales Messages purchased from Adsoft will be delivered by Adsoft or its agent through the U.S. Postal Service or by common carrier at no cost to another person (i.e. the direct mail recipient) who shall become the owner of the printed material. If any of such printed material is determined not to be a Printed Sales Messages or is delivered other than as specified above, Customer understands that Customer may be required by the California Sales and Use Tax Law to report and pay tax, measured by the purchase price of such property.
Customer agrees not to breach or attempt to breach the security of the Site, including but not limited to accessing any Services, Products or information that is not intended for Customer’s use; logging onto an account other than Customer’s account or an authorized account; taking measures to assess the vulnerability, security, robustness or integrity of the Site without valid authorization; breaching security and/or authentication safeguards without valid authorization; interfering with the Site, Materials, or its Technology by distributing unsolicited e-mail, flooding, spamming, dispersing a computer virus or taking any other action to impair, crash, minimize or inhibit any function of the Service, or attempting to exercise any of the preceding.
9 OWNERSHIP RIGHTS AND PROTECTION OF INTELLECTUAL PROPERTY
9.1 Ownership. The Service and any copyrights, trademarks, patents, trade secrets, intellectual property rights and other proprietary rights in and to the Service are owned by Adsoft and our Suppliers, and Customer obtains no right, title or interest therein. Customer hereby assigns to Adsoft all copyrights, intellectual property rights, and any other proprietary or property rights or interests in and to any work created in violation of the Agreement.
9.2 Trade Secrets. The Technology used in the provision of the Service are property and trade secrets of Adsoft, and Customer shall maintain any information learned about that Technology as a trade secret and shall not disclose such information or permit such information to be disclosed to any person or entity; however, this sentence shall not restrict Customer in training Customer’s employees or Authorized Users in the ordinary use of the Service. Customer shall not cause or cause others to copy, reverse engineer, decompile, disassemble, derive source code, modify or prepare derivative works of the Technology.
9.3 Customer’s Representations. Customer represents as follows:
9.3.1 That any and all artwork, design, logos, marks or photos as supplied by Customer are supplied with proper permission.
9.3.2 That any mark or work supplied by Customer does not infringe on any copyright, trademark or servicemark.
10 LIMITED WARRANTY; DISCLAIMER
10.1 General Limited Warranty. Adsoft represents and warrants to Customer that Adsoft has the right and authority to make the Service available to Customer.
10.2 Remedy for Breach of General Limited Warranty: Defense of Claims. In the event there is a breach of warranty under Section 10.1 above, Adsoft shall, at its sole obligation and Customer’s exclusive remedy, defend or, at Adsoft’s option, settle any action or proceeding of any kind or description based upon a third party’s claim of patent, trademark, servicemark, copyright or trade secret infringement, related to use of the service provided by Adsoft asserted against Customer by such third party provided: (i) all use of the Service was in accordance with these terms and conditions; (ii) the claim, cause of action, or infringement was not caused by Customer; (iii) Adsoft is given prompt notice of any such claim; and (iv) Adsoft has the right to solely control and direct the investigation, defense and settlement of each such claim. Customer, at Adsoft’s expense, shall reasonably cooperate with Adsoft in connection with the foregoing. If notified promptly in writing of any claim, demand, or judicial action brought against Customer based on an allegation that Customer’s use of the Service constitutes infringement, Adsoft will pay the costs, including reasonable attorney fees, associated with resolving such claim and will pay the judgment or settlement amount (if any). Should the Service or the operation thereof become, or in Adsoft’s opinion is likely to become, the subject of a claim of infringement, Customer shall permit us, at our option and expense, either (i) to procure for Customer the right to continue using the Service, (ii) to replace or modify the same so that it becomes non-infringing; or (iii) terminate Customer’s use of the Service upon notice to Customer and grant Customer a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed charges.
10.3 Limitation of Liability Relating to Composition and Delivery of Materials. It is Customer’s responsibility to carefully compose and proofread all Materials produced with the Service. Adsoft shall have no responsibility for errors or omissions in the composition of such Materials, including required disclosures, as may be required by local, state or federal law. Customer agrees that Adsoft does not guarantee that Materials will be produced without errors or omissions, and that Adsoft has no obligation to correct them either by recalling or reprinting Materials or by performing supplemental delivery of Materials. Customer agrees that Adsoft is not liable to Customer for any delays, failures of performance, delayed delivery, errors or omissions caused by Customer’s failure to adequately proofread Materials prior to ordering them, caused by a third party, resulted from information supplied by a third party, caused by labor shortage or dispute, governmental authority or was caused by an act of God, including without limitation, riots, acts of war, epidemics, fire, earthquakes or other natural disasters, or any other act beyond Adsoft’s reasonable control. Adsoft’s maximum liability to Customer for any error, omission, failure of performance, delivery or other default, shall be limited as stated herein, regardless of whether Customer alleges claims against Adsoft in contract or in tort, or other basis in law or equity. In case of an error, omission or any other default on Adsoft’s part in relation to any order of Materials, Adsoft shall be liable to Customer for the amount (as determined by Adsoft in good faith) which the value of the Materials involved was decreased, in no instance to exceed the total amount actually paid by Customer for the Materials. Adsoft will not be liable for any lost profits or any other consequential damages, including exemplary, incidental, indirect, or punitive damages. Adsoft makes no warranty of advertising effectiveness to Customer and, expressly disclaims any such warranty. Customer acknowledges and represents that Customer has not relied upon any such warranty and that Customer assumes all risks of functionality, performance or results of advertising materials produced by Customer utilizing the Service.
10.4 GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN SECTIONS 10.1 AND 10.3 ABOVE, ADSOFT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CAPABILITY OF THE SERVICE OR THE ACCURACY, RELIABILITY, CURRENCY OR COMPLETENESS OF THE MATERIALS. THE SERVICE AND MATERIALS ARE FURNISHED ON AN “AS IS”, AS-AVAILABLE BASIS. ALL WARRANTIES OF ANY TYPE NOT EXPRESSLY STATED IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
11 REMEDY AND LIABILITY LIMITATIONS
11.1 CONSEQUENTIAL DAMAGES DISCLAIMER. UNDER NO CIRCUMSTANCES WILL ADSOFT OR ANY OFFICER, DIRECTOR, EMPLOYEE, SUBCONTRACTOR, AGENT, SUCCESSOR OR ASSIGN OF ADSOFT DIRECT, INC., OR ANY COMPANY AFFILIATED WITH ADSOFT DIRECT, INC. (COLLECTIVELY, “RELATED PARTY”) BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR FOR LOSS OF PROFITS, REVENUE, OR DATA; WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
11.2 NO LIABILITY FOR INTERRUPTION. NEITHER ADSOFT NOR ANY RELATED PARTY OR SUPPLIER SHALL BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM THE UNAVAILABILITY OR INTERRUPTION OF THE SERVICE.
12 CHANGES TO AGREEMENT
From time to time, Adsoft may amend the then existing terms and conditions of this Agreement by posting changes on the Site. Customer is responsible for reviewing information posted on the Site to obtain timely notice of such changes. Changes to charges and payment terms will be prospective only, and will not apply to orders placed prior to the effective date of the change. Customer’s continued visits to the Site, use of the Service and/or order submitted on the Site shall constitute Customer’s acceptance of the respective change. Notice of a change is effective upon inclusion of the change in this Agreement, unless the change is expressly provided to become effective at a stated date thereafter.
13 GOVERNING LAW
The Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of Americaand they apply to contracts made and solely performed therein. Customer and Adsoft agree to submit to the exclusive personal jurisdiction and venue of the Superior Court of San FranciscoCounty and the United States District Court for the Northern District of California with respect to any matters or transactions relating to the Services or the use of the Site and its Materials. The Site, excluding linked sites, is controlled by Adsoft from its offices within the State of California, United States of America. By accessing the Site both Customer and Adsoft agree that the statutes and laws of the State of California, United States of America will apply to all matters relating to use of the Site and its Materials, without regard to potential conflicts that may exist with laws of other jurisdictions. Unless otherwise explicitly stated, all Materials found on this Site are solely directed to individuals, companies or other entities located in the United States of America and Adsoft makes no representation that the Materials are suitable or will be made available for use outside the United States of America. If Customer uses this Site from outside the United States of America, Customer is entirely responsible for compliance with applicable local laws, including but not limited to the export and import regulations, duties, taxation, privacy and commerce laws of other countries in relation to the Materials and use of the Site.
14 LINKS TO OTHER SITES
This Site may include access to linked sites that offer products, services and information of potential interest or service to the Customer. Adsoft provides access to such linked sites as a convenience to Customer only and such access is made entirely at Customer’s own risk. Linked sites and any link contained in a linked site are not controlled or endorsed by Adsoft and Adsoft is not responsible for the content, products, programs or services provided by linked sites. Adsoft reserves the right to update access to linked sites on its Site and terminate access to such linked sites from its Site at any time.
All Materials available for ordering on the Site are priced as marked. Pricing for Materials may vary, subject but not limited to order quantity, product type, the bundling of other products and/or services and advance orders. Certain taxes may apply to some Materials based on applicable laws. Shipping fees may also apply subject to shipping destination and method. All fees are subject to change without notice.
All payments under this Agreement will be made in U.S. dollars and will be due in full at the time an order is placed, unless otherwise specifically provided, in which case payment will be due within thirty (30) days of invoice. Amounts unpaid when due under this Agreement will accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum rate permitted under applicable law.
Customer agrees to accept any and all charges applied by Adsoft for data preparation services related to enabling Customer’s mailing list to meet Adsoft’s published mailing list format and data requirements. Such charges may be applied to Customer’s credit or debit card or other online payment service used in connection with the related order transaction, or the credit or debit card on file with Adsoft
17 RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall constitute, nor shall any party represent that there is any relationship of employer and employee, principal and agent or partnership between the parties as a result of this Agreement.
18.1 Term; Termination. Adsoft may suspend or discontinue providing services to Customer without notice and pursue any other remedy legally available to Adsoft if Adsoft has reason to believe that Customer has failed to comply with any of Terms or Customer’s obligations under this Agreement. Except as otherwise provided in this Agreement, Customer shall not be entitled to a refund of any fee paid or any credit on amounts invoiced.
18.2 Limitation on Actions. Customer may not assert any claim or course of action against Adsoft arising out of or in connection with Customer’s use of the Service or ordering of Materials more than one year after the date the claim or cause of action arose.
18.3 Notices. Except as otherwise provided in Section 12 above, all notices and other communications under this Agreement shall be in writing. Notices shall be deemed given on the date deposited in the U.S. mail, if mailed; or on the date received, if delivered in any other manner. Notices to Adsoft shall be sent to: Adsoft Direct, Inc., 4780 Chabot Drive, Ste. 120, Pleasanton, CA94588. Notices to either party may also be given by e-mail addressed to the party at the party’s e-mail address reflected in this Agreement.
18.4 Failure to Enforce. The failure of either party to enforce any provision of these terms and conditions shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
18.5 Entire Agreement. The Terms comprise the entire agreement between the Customer and Adsoft and supersede all prior or contemporaneous negotiations, discussions or agreements made by Adsoft, its agents or Suppliers, if any, between the parties regarding the subject matter contained herein. Customer’s use of the Site, however, is subject to the additional disclaimers and caveats that may appear throughout the Site and which may change from time to time, without notice.
18.6 Severability. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not affect or nullify the remainder of this Agreement, and the effect shall be confined to the part immediately involved in the controversy adjudged.
18.7 Survival of Sections. Sections 9, 10, and 11 above shall survive termination or expiration of the Agreement.
18.8 Headings. The headings of sections in this Agreement are for convenient reference only, and in no way affect the terms and conditions herein.