xAd, Inc., doing business as GroundTruth, (“GroundTruth”, “We” or “Us”) ads.groundtruth.com Terms of Use
Effective as of: January 24, 2018
Date last updated: January 24, 2018
THE TERMS AND CONDITIONS SET FORTH BELOW (THE “TERMS”) GOVERN YOUR USE OF THE GROUNDTRUTH ADS MANAGER SITE ON THE WORLD WIDE WEB. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND GROUNDTRUTH AND GOVERN YOUR ACCESS TO, AND USE OF, THE GROUNDTRUTH ADS MANAGER WEBSITE LOCATED AT ADS.GROUNDTRUTH.COM OR OTHER SUBDOMAINS, TOGETHER WITH THE SERVICES AVAILABLE THROUGH THE SITE(S) (COLLECTIVELY, THE “ADS MANAGER”). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE ADS MANAGER OR ANY INFORMATION CONTAINED ON THE ADS MANAGER. YOUR USE OF THE ADS MANAGER WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. GROUNDTRUTH MAY MAKE CHANGES TO THE CONTENT AND SERVICES OFFERED ON OR THROUGH THE ADS MANAGER AT ANY TIME. GROUNDTRUTH CAN CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS OF USE ON THE ADS MANAGER AND BY SENDING REGISTERED USERS AN EMAIL NOTICE OF THE CHANGES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU WILL CEASE USING THE ADS MANAGER. IF YOU DO NOT CEASE USING THE ADS MANAGER, YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGE.
YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT: (i) IF YOU ARE ACTING ON YOUR OWN BEHALF, YOU ARE AT LEAST 18 YEARS OF AGE; OR (ii) IF YOU ARE REGISTERING ON BEHALF OF A COMPANY, OR OTHER LEGAL ENTITY, THEN YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE ALL AUTHORITY NECESSARY TO BIND THE COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IF ACTING FOR A COMPANY OR OTHER LEGAL ENTITY THE TERMS “YOU” AND “YOUR” WILL REFER TO THAT ORGANIZATION.
The GroundTruth Ads Manager is for the enhancement of mobile advertising campaigns by direct advertisers and their agents or advertising agencies acting on their behalf.
Definitions. As used in these Terms, the following terms have the following meanings.
"Ads” means any material that promotes a brand, products, or services, and will include, without limitation, graphic and video ads, interstitial ads, ad banners, badges, buttons and text links.
“Advertiser” means a direct or indirect advertiser, media buyer, ad agency or other provider of Ads.
“Affiliate” means, as to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“End User” means any individual that uses a mobile device or other Internet interface to view or interact with an Ad obtained through the Ads Manager.
“Intellectual Property Right” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.
“GroundTruth Platform” means GroundTruth’s proprietary technology platform that enables, among other things, real time bidding for the purchase of Ad Inventory.
Other Agreements
If at any time during your use of the Ads Manager, you have a written agreement for GroundTruth services which is still in effect, that has been signed by an officer of GroundTruth, then in the event of a conflict between these Terms and the terms of such prior written agreement, the terms of the prior written agreement will control.
General Use Restrictions
Certain information, documents, materials and services provided on and through the Ads Manager, including content, logos, graphics and images (together, the “Materials”) and the Ads Manager itself are made available to you by GroundTruth and are the copyrighted, patented and/or trademarked work of GroundTruth or GroundTruth’s suppliers or licensors. Materials do not include Submissions (as defined below) or Company Data (as defined below), any third party applications, or Third Party Content.
GroundTruth grants you a limited, personal, non-exclusive and non-transferable license to access and use the Materials and the Ads Manager, subject to these Terms, solely for your use in advertising and marketing campaigns on behalf of yourself or your clients. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Materials or the Ads Manager in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of this limited license, you agree to immediately destroy any downloaded or printed Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to the Ads Manager or any Materials.
Third Party Applications
Your use of any third party applications or other materials or information that you may access or download through the Ads Manager, if any, is not governed by these Terms and is subject to the separate terms of the applicable third party licensor’s end user license or similar agreement.
Electronic Communications
If you place any orders for products or services on the Ads Manager, you are expressly agreeing that GroundTruth is permitted to bill you the applicable fees, any applicable tax and any other charges you may incur with GroundTruth in connection with your use of the Ads Manager and the services on the Ads Manager (together, the “Services”). If payment is not received for any reason, GroundTruth reserves the right to either suspend or terminate your order.
GroundTruth reserves the right, at any time, to change its prices and billing methods for products or services sold or licensed, or for use of the Materials or Ads Manager, effective immediately upon posting in the Ads Manager or by electronic communications to you.
By using the Ads Manager, you consent to receiving electronic communications from GroundTruth. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Ads Manager and Services. These electronic communications are part of your relationship with GroundTruth and you receive them as part of your participation in the Ads Manager. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Insertion Orders
You may create an advertising campaign through the campaign setup feature in the Ads Manager user interface (each such submission, an “Insertion Order”) at any time. You may make changes to your campaign at any time through the user interface in the Ads Manager. You acknowledge and agree that (i) transactions in the Ads Manager occur in real time, and bids and offers may compete simultaneously against other multiple bids and offers, (ii) the highest bid may not win an auction, (iii) you are solely responsible for accurately providing all applicable advertising campaign data, including without limitation bidding criteria, to the Ads Manager, (iv) GroundTruth makes no guarantee or warranty regarding any transaction that does or does not occur through or in connection with the Ads Manager, and (v) GroundTruth makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due any party. All Insertion Orders, Submissions, campaigns and, if applicable, Company Data are subject to GroundTruth’s creative guidelines available at Content Guidelines for GroundTruth Demand and Marketing Agreements: - GroundTruth, which may be changed, modified, or updated by GroundTruth at any time.
Payments and Credit Cards
Payments for Services will occur either through the payment of a monthly invoice or by charging your credit card depending on the type Services you ordered. Regardless of the type of Services ordered, or the payment method used, you agree that the GroundTruth Platform reporting will be determinative for determining the amount of all invoices or other amounts owed. The fees for the Services will be as set forth on the applicable Insertion Order or Ads Manager campaign set up user interface. All pricing and payments will be in United States dollars. Payment for all invoices must be received within thirty (30) days of the date of invoice. Any undisputed amounts not paid when due will bear interest at the rate of 1.5% per month, or the maximum legal rate if less, from the due date until paid. All fees for Services are exclusive of, and you will pay and be solely responsible for, all sales, use, withholding, excise and other taxes, duties, fees or governmental charges, and any related penalties and interest, that may be levied upon either party in connection with these Terms, except for taxes based on GroundTruth’s income. You will make all payments to GroundTruth free and clear of, and without reduction for, any withholding taxes, and you will provide GroundTruth with official receipts issued by the appropriate taxing authority, or such other evidence as GroundTruth may reasonably request, to establish that such taxes have been paid.
When payment will be made against an invoice issued by GroundTruth, GroundTruth will issue invoices within thirty (30) days after the end of each calendar month, and the invoice will be for your use of the Services in the preceding calendar month. Payments may be made by check, wire transfer or through Stripe if using a credit card.
For any payment made by credit card, you acknowledge that GroundTruth is using Stripe as its third party credit card processing service, and you agree and consent to Stripe, or any other third party credit card processing service used by GroundTruth, having and storing your credit card information. GroundTruth reserves the right to change its third party credit card processing service provider at any time without notice to you. GroundTruth does not store or have access to any credit card data and is not responsible or liable for any loss or use of such data by its third party credit card processing service. If you want to update or change credit cards, you may do so through the Services. If you want to stop any further processing of payments by credit card, you may do so through the Services or by notifying GroundTruth at billing@groundtruth.com.
When payment will be made by credit card, the following terms will apply. Each account will have a billing threshold, set by GroundTruth, that will be shown under “Payment Setting”. As you use the Services, your credit card will be charged on the earlier of (i) the day on which the fees for your use of the Services reaches the billing threshold or (ii) the last day of the calendar month. In a month when the billing threshold is reached, your card will be charged at least twice; on each day the billing threshold is reached and once at the end of the month. If you are using a credit card, you agree that GroundTruth may automatically charge your card as described herein. GroundTruth may pause, delay or cancel any active or pending campaign, and/or your account or access to Ads Manager, if you fail to pay amounts owed hereunder in a timely manner.
Disputed Invoices
In the event you reasonably and in good faith dispute any fees set forth on any invoice or record of payment issued by GroundTruth, you must notify GroundTruth in writing, setting forth the reasons for such dispute and the amount of such dispute (a “Dispute Notice”), no later than fifteen (15) days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days. Upon resolution of the dispute by the parties, additional agreed amounts due from you, if any, in relation to the applicable invoice must be remitted to GroundTruth within ten (10) days following such resolution. If the dispute remains unresolved forty-five (45) days after the date of the invoice at issue, either party may declare the other party in breach of these Terms and pursue any or all legal remedies available to it.
Privacy Policy
Your use of the Ads Manager is governed by the GroundTruth Privacy Policy, which can be found at http://www.groundtruth.com/privacy-policy/ (the “Privacy Policy”). You will comply with GroundTruth’s then current Privacy Policy. Additionally, you agree to comply with all applicable laws, regulations and industry self-regulatory programs, including all applicable Self-Regulatory Principles of the Digital Advertising Alliance. To the extent that you provide to GroundTruth any data, or enable GroundTruth to collect any data from your digital properties or otherwise (e.g. via pixels or tags), in connection with the performance of these Terms or any campaign, including but not limited to device identifier, IP address, web browsing data, address or precise location data (such data, “Company Data”), you agree to (i) only share with or make available to GroundTruth such Company Data subject to and with all necessary permissions, consents and licenses from the sources of such data and any End Users or persons from whom such data has been collected, or that are the subject of such data, to enable GroundTruth to perform its obligations as set forth in these Terms, and to permit GroundTruth to retain, share and use any such Company Data for its internal business purposes, subject to any mandatory restrictions prescribed by applicable laws and regulations, (ii) not provide to GroundTruth any sensitive information in the nature of social security, credit card, financial account, credit report, or medical or health information, and (iii) adequately disclose by means of a privacy policy statement posted on your website and/or such data as may be collected by you or third party advertising companies, (B) the uses of such Company Data including for analytics, marketing, interest-based advertising purposes or reference to other purposes of similar meaning, (C) if applicable, the fact that precise location data is to be transferred to or collected by third party advertising companies, (D) instructions for accessing and using a tool for providing or withdrawing consent to the collection or transfer of precise location data, and (E) a disclosure that describes a choice mechanism(s) or setting that allows consumers to exercise choice (e.g., the DAA Choice Page, AppChoices) with respect to data collected and used by third parties. You agree that nothing in these Terms or any suggestions, edits or proposed language provided by GroundTruth relating to end user notices, consents, terms or otherwise will constitute legal advice. You will obtain the independent advice of counsel in connection therewith. Where Company Data includes home address information, You hereby agree not to upload any fewer than twenty-five such addresses for targeting in connection with any single campaign.
Third Party Content and Products
Certain information and other content may be the material of third party licensors and suppliers to GroundTruth (including, without limitation, certain third party logos and trade names (“Third Party Content”)). The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on your personal computer solely for your personal use. You acknowledge and agree that you have no right to download, cache, reproduce, modify, display (except as set forth in this paragraph), edit, alter or enhance any of the Third Party Content in any manner unless you have permission from the owner of the Third Party Content. GROUNDTRUTH DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Proprietary Rights
GroundTruth is a trademark of xAd, Inc. Other trademarks, names and logos on the Ads Manager are the property of their respective owners.
Unless otherwise specified in these Terms, all information and screens appearing on the Ads Manager, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of GroundTruth, Copyright © 2016 xAd, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensee.
Feedback
If you provide GroundTruth with verbal feedback and/or written feedback related to your use of the Ads Manager, Materials, and/or any GroundTruth products or services including, but not limited to, a report of any errors which you may discover, or suggestions for improvements or changes to any of the foregoing, you hereby grant GroundTruth a perpetual, irrevocable right to use such feedback to develop and improve the Ads Manager, Materials and/or any GroundTruth product or service.
Submissions
You acknowledge that you are responsible for the campaigns you create and all files, images, videos, documents and other materials that you submit, post or otherwise make available in the Ads Manager (each a “Submission”). You also acknowledge that you are responsible for all activity in the Ads Manager that is done using your account and password regardless of whether or not such use of your account or activity in the Ads Manager is authorized by you. When you make Submissions you agree you will not upload, post or otherwise make available on the Ads Manager any material protected by any Intellectual Property Right without the express permission of the owner of such right, and the burden of determining whether any Submission is protected by any such right is on you. You will be solely liable for any damage resulting from any infringement of Intellectual Property Rights, or any other harm resulting from any Submission that you make, including without limitation any harm based on the recipient of any Submission or any jurisdiction in which a Submission originates or is received. You represent and warrant that: (a) you own all Submissions posted by you on or through the Ads Manager or otherwise have the right to grant the licenses to GroundTruth set forth in these Terms, (b) the posting of your Submissions through the Ads Manager does not violate the privacy rights, publicity rights, Intellectual Property Rights, contract rights or any other rights of any person or entity, or any applicable law or self-regulatory principal, and (c) no Submission that is an Ad or that includes advertising content will imply any specific knowledge about any consumer or end user, including the consumer or end user that receives or is intended to receive such Ad. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through the Ads Manager.
For such time as you are using the Ads Manager, you grant GroundTruth a, non-exclusive, fully-paid sublicensable and royalty-free, worldwide license to (in any media, whether now known or not currently known or invented) link to, utilize, use, publicly perform, publicly display, reproduce, distribute, modify and prepare derivative works of the Submission solely for purposes of providing the Services described in these Terms. However, under the foregoing license, YOU RETAIN OWNERSHIP OF ANY INTELLECTUAL PROPERTY RIGHTS APPLICABLE TO YOUR SUBMISSIONS.
GroundTruth may, but has no obligation to, monitor and/or to review all Submissions to the Ads Manager, and GroundTruth is not responsible for any Submissions. GroundTruth is not responsible for any failure to monitor, review and/or delete any Submissions or other materials posted to the Ads Manager or through the services. GroundTruth reserves the right at all times to disclose any information as necessary or advisable to satisfy any law, regulation or government request; and to edit, to refuse to post or to remove any Submissions or other information or materials, in whole or in part, that, in GroundTruth’s sole discretion, are in violation of these Terms or applicable law. GroundTruth may also impose limits on certain features of the Ads Manager or restrict access to part or all of the Ads Manager without notice or penalty if GroundTruth believes you are in breach of the guidelines set forth in these Terms, any GroundTruth use policy or terms, or in violation of applicable law without notice or liability.
Prohibited Uses
You promise not to use the Ads Manager or Materials for any purpose that is unlawful or prohibited by these Terms. You agree to abide by all applicable local, state and national laws and regulations. When using the Ads Manager or Materials you agree not to upload any materials, information or data or take any actions that are inappropriate or disruptive to the Ads Manager. This list of prohibitions provides examples and is not complete or exclusive. GroundTruth reserves the right to terminate your access to your account, your ability to make Submissions to the Ads Manager with or without cause and with or without notice, for any reason or no reason, or for any action that GroundTruth determines is inappropriate or disruptive to the Ads Manager or to any other user of the Ads Manager. GroundTruth may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at GroundTruth’s discretion, GroundTruth will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Ads Manager.
Copyright and Trademark Infringements
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, such as GroundTruth, being asked to remove content that allegedly violates someone’s copyright. While the DMCA itself only applies to copyrights, GroundTruth also extends its DMCA policy below to allegations of trademark infringement. As an online service provider under the DMCA, GroundTruth respects the intellectual property rights of others, and we ask you to do the same. GroundTruth may, in appropriate circumstances and at our discretion, terminate service and/or access to the Ads Manager for users who infringe the Intellectual Property Rights of others. If you believe that your work is the subject of copyright or trademark infringement and appears on our Ads Manager, please provide GroundTruth’s designated agent the following information:
GroundTruth’s agent for notice of claims of copyright or trademark infringement on the Ads Manager can be reached as follows:
By mail:
xAd, Inc. (dba GroundTruth)
One World Trade Center, 60th Floor
New York, NY 10007
Attn: Office of the General Counsel
By e-mail: legal@GroundTruth.com
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Disclaimer of Warranties
Your use of the Ads Manager, Materials and/or the services is at your own risk. The Third Party Content has not been verified or authenticated in whole or in part by GroundTruth, and it may include inaccuracies or typographical or other errors. GroundTruth does not warrant the accuracy or timeliness of the Materials or the Third Party Content contained on the Ads Manager. GroundTruth has no liability for any errors or omissions in the Materials or the Third Party Content, whether provided by GroundTruth or our licensors.
GROUNDTRUTH, FOR ITSELF AND ITS LICENSORS AND SUPPLIERS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE ADS MANAGER, MATERIALS, YOUR APPLICATIONS OR GROUNDTRUTH’S HOSTING THEREOF, THIRD PARTY CONTENT OR SUBMISSIONS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE ADS MANAGER AND/OR THE RESULTS OBTAINED FROM THE USE OF THE ADS MANAGER OR MATERIALS, INCLUDING WITHOUT LIMITATION THE THIRD PARTY CONTENT OR SUBMISSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ADS MANAGER, THE THIRD PARTY CONTENT, THE HOSTING OF YOUR APPLICATIONS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE ADS MANAGER IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. GROUNDTRUTH DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
Limitation of Liability
IN NO EVENT WILL GROUNDTRUTH AND/OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ADS MANAGER, THE USE OR PERFORMANCE OF THE ADS MANAGER, THE DELAY OR INABILITY TO USE THE ADS MANAGER, OR FOR ANY INFORMATION, THIRD PARTY CONTENT, YOUR APPLICATIONS, SUBMISSIONS AND COMPANY DATA OBTAINED THROUGH THE ADS MANAGER, OR OTHERWISE ARISING OUT OF THE USE OF THE ADS MANAGER, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF GROUNDTRUTH OR ANY OF ITS SUPPLIERS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE ADS MANAGER, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE ADS MANAGER. THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS GROUNDTRUTH’S LIABILITY OR YOUR REMEDIES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL GROUNDTRUTH AND/OR ITS SUPPLIERS OR LICENSORS TOTAL CUMULATIVE LIABILITY TO ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE TOTAL REVENUE GROUNDTRUTH HAS RECEIVED FROM YOU IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
Local Laws; Export Control
GroundTruth controls and operates the Ads Manager from its headquarters in the United States of America and the Materials, Submissions and/or Third Party Content may not be appropriate or available for use in other locations. If you use the Ads Manager outside the United States of America, you are responsible for following applicable local laws.
Term
The term of these Terms will commence upon your registration and agreement to these Terms and will continue until terminated as set forth below.
Termination
You may terminate these Terms at any time, with or without cause, upon written notice to xAd, Inc. (dba GroundTruth) at legal@GroundTruth.com or One World Trade Center, 60th Floor, New York, NY 10007, Attn: Office of the General Counsel.
If you violate these Terms, GroundTruth may terminate and/or suspend your right to access the Ads Manager or suspend or cancel your access to Services, in each case without notice. In addition, GroundTruth may terminate these Terms at any time, with or without cause in the event GroundTruth decides to stop providing the Services.
Effect of Termination
Upon termination of these Terms, your right to access and use the Services will immediately terminate and any amounts owed to GroundTruth under these Terms before such termination or expiration will become immediately due and payable, all licenses granted herein shall terminate and you will immediately discontinue all use of the GroundTruth Platform and the Services.
Confidentiality
You acknowledge that the GroundTruth Platform, the Ads Manager program, any GroundTruth product roadmap, any information you learn during any training or demonstration of the Platform, any materials, information or content that GroundTruth makes available through the Platform or provides to you regarding the Platform, and any derivative works thereof are our Confidential Information. Except as expressly stated in these Terms, during the Term and at all times thereafter, you may not disclose any such Confidential Information to any third party, nor use such Confidential Information for any purpose, other than as may be reasonably necessary for the exercise of your rights hereunder. You agree to only permit access to Confidential Information to those of your employees or authorized representatives having a need to know such information for the performance of your duties or exercise of your rights hereunder and who are bound by written confidentiality obligations at least as restrictive as those in these Terms. Confidential Information will not include any information that you can show by competent evidence: (i) is or becomes readily available to the trade or public through no fault of you own; (ii) are subsequently lawfully and in good faith obtained by you from an independent third party without breach of any obligation of confidentiality; (iii) you can establish was in your possession prior to the date of disclosure of such Confidential Information; or (iv) is developed independently by you without reference or access to any Confidential Information. Notwithstanding the foregoing, you may disclose Confidential Information to the limited extent such disclosure is required by applicable law, a court of competent jurisdiction or a governmental agency. GroundTruth retains all right, title and interest in and to the Platform and its Confidential Information, and you acknowledge that you neither own nor acquire any rights in and to the Platform or such Confidential Information pursuant to these Terms. You further acknowledge that GroundTruth retains the right to use the Platform for any purpose in GroundTruth’s sole discretion.
Indemnification
Scope. You will indemnify, defend and hold GroundTruth and its directors, officers, employees and Affiliates (each an “Indemnified Party”) harmless from and against any claims, actions, damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) breach of your representations, warranties or obligations set forth in these Terms including, but not limited to the failure to have all necessary rights in your Submissions or Company Data; (ii) any Ads served in connection with these Terms or the content thereof, including without limitation your failure to secure all Intellectual Property Rights, title and interest necessary to display the Ads through the Ads Manager, any allegation that the content, or that the services, products or goods being advertised in the Ads violate any applicable law or regulation, or any allegation that the Ads infringe upon, violate or misappropriate any Intellectual Property Rights, or slander, defame or libel any person, or any rights of privacy or publicity.
Procedure. GroundTruth will (i) promptly notify you in writing of any claim implicating the foregoing indemnification obligations, (ii) grant you sole control of the defense and/or settlement of the claim, provided that you will not acquiesce to any judgment or enter into any settlement that imposes any obligation or liability on any Indemnified Party without its express prior written consent, and (iii) provide you, at your expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. GroundTruth may at its election and expense participate in the defense of any action with counsel of its choosing.
Relationship of the Parties. The parties are independent contractors with respect to one other. These Terms do not create and will not be construed as creating a partnership, joint venture, or employment relationship between the parties. Neither party will have, and will not represent to any third party that it has, any right to obligate or bind the other party in any manner whatsoever. Nothing in these Terms will give, or is intended to give, any rights of any kind to any third party.
Assignment. Neither party may assign or delegate any of its rights or obligations under these Terms without the express prior written consent of the other party, and any attempt to do so in contravention of this provision will be null and void, except that GroundTruth may assign its rights and obligations under these Terms without such consent in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to these Terms or similar transaction, to be effective upon notice to you. These Terms inure to the benefit of and will be binding on the parties’ permitted assignees, transferees and successors.
Waiver. A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific instance and occurrence so waived. The failure by GroundTruth to insist upon the strict performance of these Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term herein. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
Construction. Section headings are for reference purposes only and should not be used in the interpretation of these Terms. No provision of these Terms will be construed against either party as the drafter thereof. Each party has had the opportunity to consult with counsel in the negotiation of these Terms. If any provision of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions of these Terms, and such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law.
Notices. All notices and other communications required or permitted to be given under these Terms will be given in writing. Notices to GroundTruth will be sent to One World Trade Center, 60th Floor, New York, NY 10007, Attn: General Counsel, with a copy to legal@GroundTruth.com. Notices to you will be sent to the address indicated in your registration for Ads Manager. Notices will be sent by certified mail, delivered by a nationally recognized courier service, delivered by hand, or sent by email, and are deemed to have been received when they are delivered by courier, hand delivered, or emailed, or five business days after the date of mailing. Either party may change its address by giving notice of the new address to the other party in writing.
Governing Law; Venue. These Terms will be governed by, and construed in accordance with, the laws of the State of New York, without reference to conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties agree that the federal and state courts in New York County, New York will have exclusive jurisdiction and venue under these Terms, and each party irrevocably submits to such jurisdiction exclusively and the parties hereby waive all defenses based upon forum non conveniens, improper venue, or personal jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If a dispute arising under these Terms results in litigation, the non-prevailing party will pay the court costs and reasonable attorneys’ fees of the prevailing party. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-trial attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party.
Entire Agreement and Language. These Terms constitute the entire understanding between the parties concerning the subject matter hereof and supersedes all prior and/or contemporaneous discussions, contracts and representations, whether oral or written and whether or not executed by GroundTruth and you. These Terms or any part or provision hereof will not be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and executed by authorized representatives of both parties. These Terms will be executed in English and any other language versions will be for convenience only.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: The headquarters of xAd, Inc. (dba GroundTruth) is currently located at One World Trade Center, 60th Floor, New York, NY 10007, Attn: Office of the General Counsel USA. The charges for access and use of the Ads Manager are specified on the Ads Manager. If you have a complaint regarding the Ads Manager or want to request a paper copy of these Terms, please contact GroundTruth by writing to the address above, or by e-mail at legal@GroundTruth.com. The Consumer Information Center of the Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95384, or by telephone at (916) 445-1254 or (800) 952-5210.