Clarivoy Master Services Terms And Conditions

CLARIVOY MASTER SERVICES TERMS AND CONDITIONS FOR STARTER (FREE SUBSCRIPTION)

As a Customer of Clarivoy you will be asked to sign a Service Order and/or an Order Form that describes the services you have chosen and the related fees and terms. The Service Order and/or Order Form will incorporate the following terms and conditions (these “Terms”). The Service Order and/or Order Form, these Terms, and any supplement terms that may apply to specific features and products (collectively, the “Agreement”) constitute the entire agreement between Customer (“you” or “Customer”) and Clarivoy (collectively, the “Agreement”) with respect to the subject matter of this Agreement, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and communications, both written and oral, with respect to such subject matter. This Agreement takes effect upon the earlier of (a) you execute the Service Order and/or the Order Form, or (b) your access of our Services (the “Effective Date”). In these Terms, each party may be referred to as a “Party” and collectively as “Parties.”

1. Services. Clarivoy will provide the services as described in the applicable Service Order and/or Order Form (the “Services”) and you agree to comply with the terms of this Agreement. Each Service Order or Order Form is incorporated into these Terms by reference. Any changes to the Services requested by you will require a separate Service Order or Order Form.

2. Changes. Clarivoy may, in its sole discretion, make changes to the Services from time to time. Without limiting the foregoing, Clarivoy may, in its sole discretion, suspend, terminate, or otherwise deny Customer’s access or use of any of the Services without incurring any liability.

3. Customer Obligations.

3.1. Use of the Services and User Interface. Customer shall access and use the Services and its user interface (“User Interface”) strictly in accordance with the guidelines provided by Clarivoy. Customer shall provide Customer Data in a form and manner as Clarivoy may request from time to time (e.g., web traffic, sales records, leads files, etc.) and shall take certain action as Clarivoy may request from time to time in order to perform the Services. Customer acknowledges and agrees that failure to provide Customer Data as requested by Clarivoy precludes Clarivoy from performing the Services.

3.2. Login; Security.

(a) Clarivoy will provide Customer access to the User Interface through a username and password (“Login”) that are unique to each member of Customer’s staff designated to have access. Therefore, Customer agrees it shall employ best practices to safeguard its Logins from loss, theft or misuse. Customer, not Clarivoy, is responsible for any misuse of Customer’s account, including misuse due to any lost or stolen Login credentials, and Customer shall promptly notify Clarivoy of any unauthorized access or use of User Interface.

(b) In no event may a Login be used by anyone other than the person to whom assigned.

3.3. Relations with Advertisers and Publishers. Customer solely is responsible for managing its relationships with Customer’s advertisers, clients and/or media properties.

3.4. Content Restrictions. Customer’s content, advertising and business practices, and Customer’s target site practices shall not be deceptive, pornographic, hate-promoting, misleading, obscene, defamatory or otherwise illegal. Customer agrees to indemnify Clarivoy for any breach or violation of this subsection.

3.5. Primary Contact. Customer shall designate a member of its staff to serve as the primary contact to Clarivoy, with responsibility for addressing all technical matters under this Agreement.

3.6. Infrastructure. Customer shall be responsible for providing and maintaining all workstations, networks, and Internet connections necessary to access and use the Services. Clarivoy is not responsible for the quality and speed of Internet transmissions.

4. Fees. Customer agrees to pay the fees for the Services, including the optional features and services, as detailed in the applicable Service Order or Order Form (“Fees”). The price stated for the Services excludes all applicable taxes, levies, currency exchange settlements and similar assessments, unless stated otherwise. Customer is solely responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties and other charges.

5. Proprietary Rights.

5.1. Clarivoy Ownership Rights. Clarivoy retains all right, title, and interest in and to the Services, including without limitation:

(a) Its applications;

(b) The User Interface;

(c) Clarivoy’s selection, compilation, interpretation, analysis, processing, and presentation of data including Customer Data, as defined in Section 5.3 and Customer’s use of the Services (the “Usage Data”) and its Reports. Parties acknowledge that (i) Clarivoy expends significant resources in selecting, compiling, interpreting, analyzing, and processing Customer Data, (ii) by analyzing and processing Customer Data, Clarivoy creates new or derivative data that is sufficiently different from Customer Data; and that (iii) the new or derivative data is valuable property of Clarivoy. Customer hereby unconditionally and irrevocably grants Clarivoy an assignment of any and all right, title, and interest Customer may have in and to the Usage Data and Reports, including all intellectual property rights related thereto. For the avoidance of doubt, Clarivoy owns the attributed results for its averages and benchmarks and the average of metric categories and statistics (collectively, the “Reports”);

(d) Its technology, algorithms, code, organization and structure of its data and databases used to provide the Services; and

(e) The look and feel of its Reports and Web sites.

5.2. Limitations. Customer has no rights in or to the Services or User Interface beyond the limited rights of access and use contemplated by this Agreement. If Customer becomes aware of any actual or threatened breach of this Section 5.2, Customer agrees to notify Clarivoy immediately and take all reasonable measures to remedy any breach.

5.3. Customer Ownership Rights. Customer retains all rights in and to any raw data or other information or materials it provides to Clarivoy (“Customer Data”) and its own technologies, know how, content and media assets.

6. Confidentiality.

6.1. Duty. Each Party will:

(a) Protect the other Party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and

(b) Not disclose the Confidential Information, except to affiliates, employees, agents and subcontractors who need to know it and who have agreed in writing to keep it confidential.

6.2. Use of Confidential Information. Each Party (and any affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.

6.3. “Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Notwithstanding anything to the contrary, including Section 6.4, Parties agree that the (a) Services, including without limitation its applications, databases, organization, design and structure of its databases and Reports, and (b) the identity and role of Clarivoy’s third party processors and Clarivoy’s relationship with those third party processors, shall be confidential and shall be deemed as Clarivoy’s Confidential Information.

6.4. Exclusions. Confidential Information does not include information that:

(a) was rightfully known by the recipient without restriction on use or disclosure ;

(b) Becomes public through no fault of the recipient;

(c) Was independently developed by the recipient without reference to or use of the disclosing party’s Confidential Information; or

(d) Was rightfully given to the recipient by another party that was not and is not under any obligation to maintain its confidentiality.

6.5. Required Disclosure. Each Party may disclose the other Party's Confidential Information when required by law but only after it, if legally permissible:

(a) Uses commercially reasonable efforts to notify the other Party; and

(b) Gives the other Party the chance to challenge the disclosure.

6.6. Reports. Clarivoy will make its reporting available on the User Interface as described in the Agreement. Reports generated by the Services of advertising performance will be available on the User Interface for at least one (1) month after the conclusion of the Services (the “Grace Period”).

7. License.

7.1. License by Clarivoy. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and condition of the Agreement, Clarivoy grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable and non-assignable (except as is provided in Subsection 14.6) license during the Term to access and use the Services and Reports in the United States solely for the benefit of Customer in the ordinary course of its internal business operations and use, including for the analysis and management of its measured advertising.

(a) The free source a Customer selects is the only free source that Customer will receive. Any additional source subscription will require payment for the Fees detailed in the applicable Service Order or Order Form. The free source cannot be switched from one source to another.

7.2. License by Customer. Customer grants Clarivoy a non-exclusive worldwide license to collect, use, interpret, analyze, process, or transfer/sublicense (to a subcontractor or third-party service provider) Customer Data:

(a) To enforce Clarivoy’s rights and/or fulfill Clarivoy’s obligations under this Agreement;

(b) To compile aggregate statistics and performance information for Clarivoy’s business purposes, including but not limited to, improving its Services, Reports, and assessing trends in online advertising and audience demographics;

(c) for its business research, white papers, presentations, industry benchmarks and other marketing purposes, provided that such data will be used in an anonymized and/or aggregate form only and will not reveal the identity of any individual or you as a source of such data. For the purposes of clarity, Clarivoy will not sell Customer Data.

8. Privacy.

8.1. Privacy Policy. It is Customer’s sole responsibility to post, and to require the target sites to feature an easy-to-understand privacy policy with a link from the target site’s home page that contains the word “Privacy”, which shall clearly disclose that:

(a) Customer works with a third party for advertising measurement;

(b) Customer works with a third party for any targeted advertising delivery and collets data regarding user’s online activities to predict user preferences or interests to deliver advertising;

(c) The information collected about a consumer’s online activities may be used in order to provide advertisements about goods and services of interest to the consumer;

(d) How Customer collects, uses, and shares data, including any cross-device data collection;

(e) Options available to a consumer, including option to opt out.

8.2. Privacy Terms. It is Customer’s sole responsibility to ensure that its privacy policy is in compliance with the law and in accordance with industry standard. Customer shall fully comply with its respective publicly facing privacy notice and all other publicly-facing statements regarding the privacy or data security of personal data.

8.3. Additional Requirements. Clarivoy may from time to time require Customer to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations or are otherwise deemed as necessary by Clarivoy for the purpose of providing end users with information and choices in connection with online advertising.

9. Term; Termination.

9.1. Term. Except as otherwise provided in the Service Order or Order Form, this Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to the Agreement, shall expire in one (1) month (“Initial Term”). The Agreement will renew automatically for successive one-month terms (each, a “Renewal Term”) (together with the Initial Term, the “Term”) unless either Party notifies the other in writing at least thirty (30) days before the end of the Initial Term or any Renewal Term that it does not wish to renew the Agreement. Such notice may be provided by email.

9.2. Termination. Clarivoy may terminate this Agreement at any time upon notice. In addition to the other remedies provided in this Agreement, this Agreement shall terminate if:

(a) A party is in material breach and fails to cure within thirty (30) days following receipt of written notice from the non-breaching party; or

(b) Customer is using the Services in a manner likely to damage the Services or Clarivoy’s reputation, in which case, the Agreement terminates upon Clarivoy’s written notice to Customer of its reasonable determination of such damage.

9.3. Duties upon Expiration or Termination. On the date of expiration or termination of this Agreement (a) Customer’s access to the User Interface and Services will end and Customer shall immediately cease all use of Services and Reports and promptly return all documents and materials containing Clarivoy’s Confidential Information and (b) Customer shall promptly pay all amounts due and still owing to Clarivoy. Unless otherwise required by law, Clarivoy is not obligated to delete any Customer Data but will delete Customer Data upon Customer’s written request (email being sufficient).

9.4. Grace Period. Notwithstanding anything contrary above, the one-month Grace Period to access Reports after the end of a Term as provided in Section 6.6 will survive termination of this Agreement; provided, that the Grace Period does not apply in circumstances in which the Agreement terminates as a result of Customer’s material breach of this Agreement.

10. Representations and Warranties.

10.1. Mutual Warranties. Each party represents and warrants to the other that:

(a) It has the full power and authority to enter into this Agreement;

(b) The person signing the Service Order or Order Form (whether in electronic or written form) has the authority to bind the Party to this Agreement.

10.2. Additional Customer Representations. Customer represents, warrants and covenants that

(a) Customer owns or otherwise has the necessary rights and consents in and relating to the Customer Data so that, as received and used by Clarivoy in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy, or other rights of any third party or violate any applicable law.

(b) Customer will comply with all applicable laws and regulations, including but not limited to, those regarding data privacy and security.

10.3. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES AND CLARIVOY MATERIALS (INCLUDING REPORTS) ARE PROVIDED “AS IS,” CLARIVOY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

10.4. Additional Disclaimer. IN ADDITION, CLARIVOY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES OR THE RESULTS THAT CUSTOMER MAY DERIVE FROM THE SERVICES WILL BE AVAILABLE AT ALL TIMES AND LOCATIONS, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS” AND CLARIVOY IS NOT RESPONSIBLE FOR ANY THIRD-PARTY MATERIALS. CLARIVOY IS NOT RESPONSIBLE FOR ANY DAMAGES INCURRED IN CONNECTION WITH THE AVAILABILITY, OPERATION OR USE OF ANY THIRD PARTY SERVICES OR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS.

11. Indemnification. Customer shall indemnify, defend and hold harmless Clarivoy and its managers, officers, directors, members, employees, agents, successors, assigns, and subcontractors from and against any and all actual or threatened claims, actions, losses, damages liabilities, costs and expenses, including without limitation reasonable attorneys’ fees and expenses, incurred by Clarivoy resulting from the following:

(a) Customer Data;

(b) Allegation of facts that if true, would constitute Customer’s breach of any representation, warranty or obligation under this Agreement,

(d) Injury or damages caused by the Customer’s gross negligence or willful misconduct; or

(e) Customer’s use of Services or User Interface that is outside the purpose, scope or manner of use authorized by the Agreement, or in any manner contrary to Clarivoy’s instructions.

Clarivoy agrees to promptly notify Customer of the claim and cooperate with the Customer in defending the claim. Customer shall not settle any claim without Clarivoy’s prior written consent. If Customer fails to assume control of the defense of such claim, Clarivoy shall have the right but not the obligation to defend against such claim. Clarivoy’s failure to perform any obligations under this Section will not relieve Customer of its obligations.

12. Limitation of Liability.

12.1. Consequential Damages. IN NO EVENT WILL CLARIVOY,ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES HAVE LIABILITY TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR LOSS OF DATA; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF SERVICES, OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE

12.2. Additional Limitations. IN NO EVENT SHALL CLARIVOY’S AGGREGATED LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED [$100.00.] THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13. Restrictions and Obligations.

13.1. Customer Restrictions. Customer shall not, and shall not permit any other person, to access or use the Services (including Reports) except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not:

(a) Use the Services or Reports for commercial time-sharing, rental or service bureau use, or rent, lease, lend, sell, sublicense, assign, transfer, or otherwise make available any Services (including Reports) to any third parties;

(b) Directly or indirectly through others access the Services (including Reports) to “scrape” or data mine Clarivoy’s applications, source code, computer servers or databases for any purposes, including for the purpose of creating for Customer or any third party a searchable database or competitive product derived from Clarivoy’s system;

(c) Access or use the Services (including Reports) in jurisdictions prohibited by law or in violation of law or in any manner or for any purpose that violates any right of any third party; or

(d) Modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble the Services (including Reports).

13.2. Customer Obligation. Customer acknowledges and agrees that Clarivoy may utilize third-party service providers to fulfil its obligations hereunder and that third-party service providers may, from time to time, impose certain obligations on Customer (e.g., prohibiting Customer from using third-party service provider data for purposes other than for those permitted, or requiring Customer’s privacy notice to include language regarding cross-device data collection). Customer agrees to comply with these obligations, to assist Clarivoy with its compliance with those agreements, and to indemnify Clarivoy for all costs that Clarivoy incurred for Customer’s violation of those obligations.

13.3. Additional Customer Obligation. Customer shall not

(a) Transmit viruses, including, without limitation, codes, commands, or instructions designed to access, alter, delete, damage or disable Clarivoy’s computer information system and networks;

(b) Engage in unlawful or deceptive conduct;

(d) Access Clarivoy’s computer network, systems and databases without permission, including without limitation, using password spoofing.

14. General.

14.1. Publicity. Clarivoy may publicly disclose, issue any press release, or otherwise communicate with the media regarding the existence of this Agreement or the subject matter hereof. Clarivoy shall have the right to use Customer’s name and logo in general marketing materials related to the Services.

14.2. Dispute Resolution. The Parties agree to resolve any disputes between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process.

14.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.

14.4. Venue. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN FRANKLIN COUNTY, OHIO, UNITED STATES OF AMERICA.

14.5. Service Order and/or Order Form. In the event of any consistency between these Terms and a Service Order or Order Form, the Service Order or Order Form shall prevail.

14.6. Assignment.

(a) Either Party upon notice to the other may assign its obligations under this Agreement in the event of a merger or acquisition of the Party or an acquisition of substantially all of such Party’s assets.

(b) Except as provided above, each Party may not assign any of its rights or delegate any of its obligations under this Agreement without the other Party’s written consent, which consent will not be unreasonably withheld.

(c) This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

14.7. Amendment. These Terms are subject to change by Clarivoy at any time, in its sole discretion. Clarivoy will notify Customer of any changes of these Terms. Customer’s continued use of the Services for a period of 30 days after notification of change will constitute Customer’s acceptance of and agreement to such changes.

14.8. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

14.9. Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Such writing may be provided in email form.

14.10. Independent Entities. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

14.11. Severability. If any provision of this Agreement is found unenforceable, then that provision will be deemed severed from the Agreement and will not affect the validity or enforceability of the remaining provisions of the Agreement.

14.12. Force Majeure. Clarivoy will not be liable for inadequate performance to the extent such inadequate performance is caused by a condition (for example, natural disaster, act of war or terrorism, act of god, riot, labor condition, governmental action, and Internet disturbance, cyber attacks) that was beyond Clarivoy's reasonable control.

14.13. Survival. The following sections will survive expiration or termination of this Agreement: Sections 5 to 9, and 11 to 14.

14.14. Counterparts. The Parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

14.15. Electronic Transactions. The Parties may present and sign this Agreement electronically, which shall have the same force and effect as an Agreement signed in writing.

14.16. Additional Remedies. Each Party acknowledges that a Party may suffer irreparable harm should a Party fail to abide by the terms of this Agreement, such as, each Party’s confidentiality obligations or proprietary rights. Therefore, each Party agrees that a Party may, in addition to recovering legal damages, proceed in equity to obtain injunctive relief to enjoin violation of this Agreement.

15. COMPLETENESS. The Agreement is the complete and exclusive agreement between the Customer and Clarivoy regarding its subject matter and supersedes and replaces any prior agreement, understanding and communication, written or oral, with respect to the subject matter of this Agreement. The Agreement prevails over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its terms to Clarivoy. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.

Last updated January 31, 2024

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