EXHIBIT A TO ADLINKR AUTOPILOT DM™ SUBSCRIPTION AGREEMENT
Terms and Conditions
The following terms and conditions govern your use of ADLNKR AUTOPILOT DM™ (the “Online Services”) and the materials available therein (the “Materials”):
1. LICENSE; RESTRICTIONS ON USE
1.1 You are granted a nonexclusive, nontransferable, limited license to access and use for research purposes the Online Services and Materials from time to time made available to you.
1.2 All right, title and interest including all copyrights and other intellectual property rights) in the Online Services and Materials belong to ADlinkr Inc. (“ADlinkr”) or its third party suppliers of materials. You acquire no proprietary interest in the Online Services, Materials, or copies thereof.
1.3 Except as specifically provided herein, you may not use the Online Services or Materials retrieved from the Online Services in any fashion that infringes the copyrights or proprietary interests therein.
2 ACCESS TO SERVICES
2.1 Only individuals authorized by the subscribing organization may access and use the Online Services. The subscribing organization must give notice to Attn: Customer Service, ADlinkr Inc., 2969 Cesar Chavez, San Francisco, California 94110, prior to any change in the individuals authorized to access and use the Online Services.
2.2 Your login(s) may be restricted from accessing certain features and/or Materials otherwise available in the Online Services.
2.3 Materials and features may be added to or withdrawn from the Online Services and the Online Services otherwise changed without notice.
3 SUBSCRIPTION TERM
3.1 The term of your subscription commences on the date on which you are first provided access to the Online Services and shall continue, unless sooner terminated, for a period of one (1) year. Thereafter, unless you give written notice of your desire not to renew at least 30 days prior to the end of the then-current term, your subscription shall automatically renew for additional terms of one (1) year. Notwithstanding the foregoing, you shall have the right to terminate your subscription immediately upon written notice to ADlinkr at any time during the first 30 days of your subscription (initial or any renewal subscription).
4 FEE SCHEDULE; PAYMENT
4.1 Customer agrees to pay to ADlinkr the fees set forth on Exhibit B (attached hereto).
4.2 All charges incurred by you, together with applicable taxes, are payable in U.S. Dollars immediately upon receipt of an invoice. Amounts which have not been paid within 30 days after the invoice date are thereafter until paid subject to a late payment charge at a rate equal to 15% per annum (or, if less, the maximum rate permitted under applicable law).
4.3 Charges and payment terms may be changed only upon 30 days’ prior written notice to you.
4.4 You shall be liable for all costs of collection incurred by ADlinkr, including, without limitation, collection agency fees, reasonable attorneys’ fees, and court costs, if you fail to comply with the payment obligations set forth herein.
4.5 All charges to you are exclusive of any state or local sales, use, or similar taxes. If any such taxes are applicable, they shall be charged to your account.
5 LIMITED WARRANTY
5.1 ADlinkr represents and warrants that it has the right and authority to make the Online Services available pursuant to these Terms and Conditions.
5.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 5.1, THE ONLINE SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND ADLINKR AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL WARRANTIES IN AND TO THE ONLINE SERVICES AND MATERIALS. ADLINKR AND EACH THIRD PARTY SUPPLIER OF MATERIALS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE MATERIALS AVAILABLE THROUGH THE ONLINE SERVICES, OR THE ONLINE SERVICE ITSELF. IN NO EVENT WILL ADLINKR OR THIRD PARTY SUPPLIERS OF MATERIALS, OR THEIR RESPECTIVE AFFILIATES OR AGENTS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE MATERIALS, OR FOR ANY CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6 LIMITATION OF LIABILITY
6.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from: (a) any errors in or omissions from the Online Services or any Materials available or not included therein; (b) the unavailability or interruption of the Online Services or any features thereof or any Materials; (c) your use of the Online Services or Materials (regardless of whether you received any assistance from a Covered Party in using the Online Services); (d) your use of any equipment in connection with the Online Services; (e) the content of Materials; or (f) any delay or failure in performance beyond the reasonable control of a Covered Party.
6.2 “Covered Party” means: (a) ADlinkr, its affiliates, and any officer, director, employee, subcontractor, agent, successor or assign thereof; and (b) each third party vendor, service provider and supplier of Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor or assign thereof.
6.3 THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY OTHER CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS SHALL NOT EXCEED THE AMOUNT YOU PAID TO ADLINKR FOR YOUR USE OF THE ONLINE SERVICES DURING THE PRECEDING SIX (6) MONTHS. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
6.4 THE COVERED PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGILGENCE OF ANY COVERED PARTY.
7.1 These Terms and Conditions may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with your applicable price schedule; all other provisions may be changed by The Deal immediately upon notice. Your subscription for access to the Online Services may be terminated at any time upon notice to ADlinkr if any change is unacceptable. Continued use of the Online Services following any change constitutes your acceptance of the change.
7.2 In the event you breach any of your obligations (including making payment in full when due),: (a) ADlinkr may suspend, discontinue or terminate the subscription for access to the Online Services; (b) You agree to pay to ADlinkr a subscription termination fee equal to $500 due as of the effective date of termination; and (c) ADlinkr may pursue any other remedy legally available to it. For purposes of the foregoing, the effective date of termination shall be the date of an appropriate notice of termination, unless a later date is specified in the notice.
7.3 Except as otherwise provided herein, all notices and other communications hereunder shall be in writing, sent via electronic mail from ADlinkr to you or displayed electronically in the Online Services by ADlinkr. Notices shall be deemed to have been properly given on the date deposited in the U.S. mails, if mailed, on the date first made available, if displayed in the Online Services, or on the date sent, if delivered in any other manner. Notices to ADlinkr should be sent to Attn: Legal Affairs, ADlinkr Inc., 2969 Cesar Chavez, San Francisco, California 94110.
7.4 The failure of ADlinkr or any third party vendor, service provider or supplier of Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
7.5 You may not assign your rights or delegate your duties under your subscription to access the Online Services without the prior written consent of ADlinkr.
7.6 These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California.