Triggit

Triggit, Inc. (“Triggit”) is hereby offering its proprietary platform of tools for bidding on the various real time advertising exchanges (the “Triggit Platform”) according to the terms and conditions of this Platform License Agreement (the “Agreement”). Triggit reserves the right to modify this Agreement without notice. Your continued usage of the Triggit Platform constitutes your acceptance of the terms of this Agreement, which are also available at [http://www.triggit.com/tos.php]. Violation of any term of this Agreement by you may result in termination of your Client account. You are referred to herein as “Client” and together with Triggit, each a “Party” and collectively, the “Parties”. Questions about this Agreement may be sent to contact [at] triggit [dot] com. 1. Triggit Platform. Triggit will offer Client access to the Triggit Platform via a secure web-based interface. Triggit reserves the right to reject or cancel any ad which Client proposes to submit via the Triggit Platform for any reason. 2. Terms of Payment. Client shall pay Triggit the license fees of 15% of total media spend. Clients with total monthly media buys over ten thousand dollars ($10,000) will be invoiced by Triggit on a Net-30 day basis. Clients with a total monthly media spend of less than ten thousand dollars ($10,000) are required to have a valid credit card on file and which will be automatically charged when the Client balance with Triggit reaches five hundred dollars ($500). Client shall be solely responsible for the payment of, and shall pay when due and indemnify Triggit against, all applicable federal and state taxes, and payments to Triggit under this Agreement (except for taxes assessed on Triggit’s net income). 3. Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such Party; (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; and (d) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws. 4. Indemnification. Each Party agrees to indemnify and hold the other Party and its affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of the breach of the representations, warranties and covenants made by such Party herein, or out of such Party’s gross negligence or willful misconduct. 5. Disclaimers; No Warranties. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRIGGIT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. TRIGGIT DOES NOT WARRANT THE RESULTS OF USE OF THE TRIGGIT PLATFORM, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CUSTOMER SHOULD NOTE THAT IN USING THE TRIGGIT PLATFORM, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER TRIGGIT'S CONTROL (SUCH AS A THIRD PARTY SERVERS). TRIGGIT MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES. 6. Limitation of Liability and Damages. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED TWO (2) TIMES THE ANNUAL FEES DUE BY CUSTOMER TO TRIGGIT HEREUNDER. 7. Intellectual Property. (a) Triggit Platform. Triggit shall own and retain all right, title, and interest in and to the Triggit Platform (except for any licensed content and software components included therein). Client agrees not to copy, alter, modify, or create derivative works of the Triggit Platform or otherwise use the Triggit Platform in any way that violates the use restrictions contained in this Agreement. Triggit does not grant to Client any license, express or implied, to the intellectual property of Triggit or its licensors. (b) Derived Data. Client shall own and retain all right, title, and interest in and to any data derived by Client’s use of the Triggit Platform (collectively, the “Derived Data”), provided, however, that Client hereby grants to Triggit a worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Client’s management of advertising campaigns via the Triggit Platform solely for purposes of maintaining and improving the Triggit Platform and (ii) non-identifiable aggregate data regarding Client’s use (and other clients’ use) of the Triggit Platform compiled by Triggit solely for marketing purposes. (c) Client-Provided Data. Client shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by Client (or its respondents and invitees) to Triggit in connection with its use of the Triggit Platform (collectively, the “Client-Provided Data”), provided, however, that Client hereby grants to Triggit a worldwide, royalty-free, non-exclusive license to use the Client-Provided Data solely for the purposes of fulfilling its obligations hereunder. Triggit may not use the Client-Provided Data for any other purpose without the prior express written consent of Client. (d) Client Logos and Designs. Client shall retain all right, title and interest in and to all of Client’s logos, promotional graphics and related marketing designs (collectively, the “Client Art”); provided, however, that Client hereby grants to Triggit a worldwide, royalty-free, non-exclusive license to use the Client Art, as well as Client’s corporate and/or trade name, for purposes of marketing Triggit’s products and services to third parties. 8. Confidentiality. “Confidential Information” shall mean (a) the content of this Agreement; and/or (b) all Client-Provided Data and Derived Data. During the term of this Agreement, and for two (2) years following termination, neither Party will, subject to the licenses granted in Section 7(b)(ii) and Section 7(c) above, use, sell or disclose any Confidential Information of the other Party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) is independently developed by the receiving Party without access to the other Party's Confidential Information; (b) becomes publicly known through no breach of this Section 8 by the receiving Party; (c) has been rightfully received from a third Party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing Party; or (e) is required to be disclosed by a legal or governmental authority. 9. Cancellation. Client may cancel its account online through Client’s account interface if online cancellation functionality is available, or, if not available, with prior written notice to Triggit, including without limitation electronic mail to [email address]. Given the nature of real time advertising exchanges, cancelled ads may be published despite Client’s cancellation order. , Provided that the Triggit Platform has processed such cancellations in a reasonable time, Client must pay for such ads. Triggit may cancel immediately this Agreement at any time with notice, in which case Customer will be responsible for any ads already run. Sections 2, 4, 5, 6, 7, and 8 will survive any expiration or termination of this Agreement. In the event of any termination, (a) Client will remain liable for any amounts due under this Agreement (adjusted on a pro rata basis, if applicable) and (b) Triggit will return all Client-Provided Data to Client and will destroy all Client Art in its possession. 10. Privacy Policy. Client further acknowledges that its use of the Triggit Platform (as well as such use by its respondents and invitees) is governed by Triggit’s Privacy Policy, a copy of which is currently located at http://Triggit.com/triggit_privacy_policy.html. 11. Miscellaneous. Triggit and Client are independent contractors, and neither Triggit nor Client is an agent, representative, employer, employee, or partner of the other. This Agreement sets forth the entire agreement between Triggit and Client. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any notices under this Agreement shall be sent to the address set forth on Client’s account page by electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.