AZALEAD END USER LICENSE AGREEMENT (“AGREEMENT”)
(Updated March 15, 2018)
This Agreement sets forth the terms and conditions applicable to Azalead’s proprietary, software-as-a-service platform and related products, services, and support. The Azalead platform provides marketing and advertising technology known as Account-Based Marketing (ABM), and is licensed on a subscription basis.
USE OF THE AZALEAD PRODUCTS AND SERVICES IS GOVERNED BY THE TERMS OF THIS AGREEMENT:
“Azalead ABM Platform” shall mean Azalead’s hosted software technology platform and related solutions as more specifically described in the applicable Order Form (collectively, the “Services”).
“Advertising Services” shall mean company-targeted advertising and ad retargeting as more specifically described in the applicable Order Form.
“Managed Services” shall mean any professional services related to the implementation or management of the Azalead ABM Platform and other account-based marketing services as more specifically described in the applicable Order Form.
“Customer” shall mean the entity signing this Agreement.
“Data” means Azalead’s proprietary mapping of online identifiers, such as IP addresses, cookies, device IDs or advertising identifiers to companies, segments, and company attributes (including but not limited to company name, industry, revenue) which is delivered to Customer as part of the Azalead ABM Platform.
“Azalead” shall mean Azalead SAS, or one of its subsidiaries, in accordance with Section IX below.
“Intellectual Property Rights” means, on a worldwide basis, all patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models and re-issues), patent applications, copyrights (including all registrations and applications therefore), trade secrets, service marks, trademarks, trade names, trade dress, trademark applications and other proprietary and intellectual property rights, including moral rights.
“Third Party Application” means a Web-based software process or functionality that is provided by Customer or a third party and interoperates with a service including, for example, an application that utilizes Azalead’s Application Programming Interface (“API”). Use of the Azalead API shall require a unique API Key for each Service licensed by Customer and be used to determine the level and type of data returned by Azalead as listed on the Order Form. Each API Key is limited to the one business application (“Limited Application”) and one single root domain identified in the Order Form (example http://www.subroot.rootdomain.com/) or otherwise specified in the Order Form.
I. STRUCTURE OF THE AGREEMENT
A. Scope of the Agreement.
This End User License Agreement (“Agreement”) is subject to an order form between Customer and Azalead or a Azalead authorized reseller (“Order Form”). In the event of a conflict between the terms and conditions of this Agreement and an Order Form, the Order Form shall prevail. Customer Affiliates may also procure Services by entering into an Order Form referencing this Agreement.
II. INTELLECTUAL PROPERTY RIGHTS
A. License. Azalead hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Services for Customer’s internal business purposes, for the term specified in the applicable Order Form, for the Limited Application and single root domain identified in the Order Form, subject to the terms of this Agreement and the applicable Order Form. Azalead reserves all rights, title, and interest in and to the Services, including all related Intellectual Property rights, subject to the limited rights expressly granted hereunder.
B. License Restrictions. Customer will use the Services for internal business purposes only as contemplated by this Agreement and will not:
(a) use the Services in violation of or beyond the license granted herein;
(b) use the Services, directly or indirectly, in applications (such as tag containers, data management platforms and/or data warehouses) other than the Limited Application;
(c) permit any third party to access the Services, or otherwise sell, rent, license, provide, or distribute the Services;
(i) provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor), if such Third Party Contractor has entered into a written agreement with Customer at least as restrictive as this Agreement.
(d) use the Services to communicate any message or material that (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations;
(e) create derivative works from the Services, or otherwise reverse engineer or access the Services in order to (i) build a competitive product or Services, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services;
(f) use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Azalead’s infrastructure or interfere or attempt to interfere with the proper working of the Services;
(g) attempt to gain unauthorized access to the Services or related systems or networks, or systematically access the Services using “bots” or “spiders”; and
(h) develop a competitive product to Azalead’s Advertising Services.
The restrictions set forth in this Section shall survive termination of this Agreement.
C. Azalead Technology.
Customer acknowledges and agrees that Azalead alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Azalead technology, Data and the Services (including but not limited to the Managed Services), as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services (all of the foregoing being the “Feedback”), provided however, in no event shall Azalead claim any ownership rights to Customer’s Confidential Information. The Azalead name, the Azalead logo, the marks of Azalead’s licensors, and the product names associated with the Services are trademarks of Azalead or third parties, and no right or license is granted to use them. Azalead may collect, review and/or aggregate non-personal information from API and application server logs, such as API requests and results, browser type, browser language, and the date, time and referral URL of API calls, specifically for the purpose of improving the Azalead’s Services, and to prevent and/or address technical concerns related to the Services.
D. Interoperation with third party applications.
The Services may contain features designed to interoperate with third party applications. To use such features, Customer may be required to obtain access to such third party applications from their providers, and may be required to grant Azalead access to Customer’s account(s) for such third party applications. Azalead cannot guarantee the continued availability of such features, and may cease providing them without entitling Customer to any notice, refund, credit, or other compensation, if for example and without limitation, the provider of a third party application ceases to make their application available for interoperation with the corresponding Services features in a manner acceptable to Azalead.
III. Term and Termination.
(a) Initial Term. The Initial Term of the Services shall commence on the start date stated in the applicable Order Form. Upon the end of the Initial Term, the Agreement will renew (the period during which this agreement is effective, the “Term”) for one or more additional periods equal to the period of the Initial Term, except if each party informs the other party in writing of the non-renewal at least sixty (60) days before the end of the effective Term.
(b) Termination for Cause. Either party may terminate the Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
(c) Termination for Insolvency. In the event that either party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, then such party will immediately give notice thereof to the other party, and the other party may terminate the Agreement upon written notice.
(A) In the event of any material breach of this Agreement by Customer (including non-payment of fees by Customer or its authorized reseller), without limiting Azalead’s other rights and remedies, Azalead may immediately, with 10 days written notice (email is sufficient) suspend Customer’s access to the Services until cured.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Azalead represents and warrants that the Services do not infringe any third party’s U.S. or E.U. patents or other Intellectual Property Rights. Customer acknowledges that the Services involve the temporary handling of data that some regulators may deem personal or private. Azalead takes all reasonable efforts to remain in compliance with privacy regulations in the jurisdictions where services are offered or performed. In addition, Customer represents and warrants that its use of the Services will comply with Section II of this Agreement and all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy requirements.
Azalead represents and warrants that it will provide competent Azalead Personnel with sufficient skill, knowledge, and training to perform the Website Platform Services that are set forth in this Agreement and any Order Form and that such Azalead Personnel will perform such Website Platform Services in a diligent and professional manner, and the Website Platform Services will comply with industry standards for such Website Platform Services. Azalead further represents and warrants that it will strictly comply with the descriptions and representations for the Website Platform Services as set forth in this Agreement and the applicable Order Form
C. Customer Obligations.
Customer shall (a) provide Azalead with all necessary cooperation and information needed by Azalead to provide the Services and other Azalead Materials under this Agreement, (b) ensure that its IT Systems comply with the technical requirements provided by Azalead to Customer from time to time for use of the Services, (c) be solely responsible for procuring and maintaining its network connection and telecommunication links from its systems to Azalead’s IT Systems, and (d) no later than 45 days from the Start Date, Customer and Azalead will enable “always on” advertising at a mutually agreed minimum impression rate and will review and adjust this minimum impression rate every month thereafter to ensure purchased impressions will be served no later than the expiration date of the term. The Customer’s right to serve any unused ad impressions will expire at the contract expiration date.
D. Disabling Codes.
Azalead represents and warrants to Customer that it will not knowingly introduce or distribute any malicious code or viruses into the Services.
(a) “Confidential Information” means any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, Services, development, inventions, processes, engineering, marketing, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities disclosed by the disclosing party to recipient either directly or indirectly in any form whatsoever (including, but not limited to, in writing, in machine readable or other tangible form, orally or visually) and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
(b) During the Term of this Agreement, each party will learn or receive information about the other which the other treats as confidential. Each party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information (but in no event less than reasonable care). Receiving party shall not use the Confidential Information for purposes of unfair competition. Receiving party agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any Azalead Confidential Information or violate the License Restrictions as noted in this Agreement. Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement.
(c) Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when received by the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party or (iv) was developed independently by the receiving party by individuals without reference to disclosing party’s Confidential Information, as evidenced by its records.
(d) The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(e) The obligations of the parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for three (3) years thereafter. Thereafter, the receiving party’s obligations with respect to any particular Confidential Information of the disclosing party shall remain in effect, including after the expiration or termination of this Agreement, until such time as it qualifies under one of the exceptions set forth in Section VI(c) above.
(f) Azalead and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other party may be irreparable; therefore, the parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.
Each party (in this case, the “Indemnifying Party”) shall defend each other (in this case, the “Indemnified Party”) and the Indemnified Party’s officers, agents, and employees against any third-party claim, demand, suit or proceeding made or brought by a third party, arising out of or caused by the breach or alleged breach by the Indemnifying Party of any of its representations or warranties contained in Section V(A) (a “Claim”). The Indemnifying Party shall indemnify the Indemnified Party for any damages, attorney fees and costs awarded as a result of, or any amounts paid under an Indemnified Party approved settlement of, a Claim against such party, or any other resulting demands, liabilities or expenses (including reasonable attorneys’ fees); provided that the Indemnified Party (a) promptly gives the Indemnifying Party written notice of the Claim; (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided the Indemnifying Party may not settle or defend any Claim against the Indemnified Party unless it unconditionally releases the Indemnified Party of all liability and obtains such party’s approval); and (c) provides to the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense with counsel of its choosing at its own cost.
Notwithstanding the provisions of this Section, Azalead will have no liability to the extent that any such Claim would have been avoided but for (i) unauthorized modification of the Services or any deliverable by Customer after delivery by Azalead, (ii) Customer’s failure to use updated or modified Services provided at no cost as a replacement for the original Services by Azalead to avoid such a claim, (iii) any use of the Services not in accordance with the Order Form and this Agreement; (iv) third-party products and services; or (v) the combination of the Services with products or services not provided by Azalead.
In the event that any Services are, or are likely to be, infringing, Azalead, at its option and expense, may either (i) modify the Services so that they become non-infringing, (ii) replace the Services with functionally equivalent non-infringing services, or (iii) procure for Customer the right to continue use of the Services.
This “Indemnification” section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other party for any type of claim described in this section.
VIII. Disclaimer and Limitation of Liability.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND ALL DATA IS PROVIDED ON AN “AS IS” BASIS. AZALEAD AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. AZALEAD AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL RESULT IN SALES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AZALEAD HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Contracting Party, Notices, Governing Law and Jurisdiction. The contracting party, jurisdiction, governing law and notice provisions for this Agreement depend on where the Customer is domiciled:
|If Customer is domiciled in:||Customer is contracting with:||Notices should be addressed to:||Governing Law||Courts having Jurisdiction|
|United States of America||Azalead, Inc., a Delaware corporation||Azalead, Inc., 100 S. Baldwin, Suite 200. Madison WI 52703. USA||Wisconsin and controlling United States federal law||Madison County, Wisconsin, USA|
|Country in Scandinavia||Azalead AB, a private limited company incorporated in Sweden||Azalead AB, Sergels Torg 12, 111 57 Stockholm Sweden||Stockholm, Sweden||Sweden|
|Country in Europe and rest of the world||Azalead, SAS, a private limited company incorporated in France||Azalead SAS, 10 rue la Boétie, 75008 Paris, France||Paris, France||France|
Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to irrevocably submit to the exclusive jurisdiction of the applicable courts.
(b) Assignment. This Agreement is binding on the parties hereto and their respective successors and permitted assigns. Azalead may assign this Agreement in its entirety (including all Order Forms hereunder), without consent, to its successor in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity. Otherwise, neither Party may assign, delegate or transfer this Agreement and any assignment or other attempt in violation of this section is void.
(c) Force Majeure. Azalead’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, changed governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that Azalead is not able to provide Services during such event, during such period Customer’s obligation to pay for the Services shall be suspended and Customer may terminate after 30 days without Services.
(d) Surviving Provisions. Sections II(B) (License Restrictions), II(C) (Azalead Technology), IV (Fees) for any unpaid fees, VI (Confidentiality), VII (Indemnification), VIII (Disclaimer and Limitation of Liability), and IX (General) shall survive any termination or expiration of this Agreement or Order Form.
(e) No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
(f) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties.
(g) No text or information set forth on any other purchase order, preprinted form or document (other than a mutually executed Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
(h) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Azalead as a result of this Agreement or use of the Services.
(i) No rules of construction are intended or shall be applied in the interpretation of this Agreement and both Parties hereto shall be deemed joint authors hereof for all purposes.
(j) Support; Service Levels. Azalead shall provide the support and availability set forth at www.azalead.com/terms-of-service-support.
(l) Managed Services. Managed Services may be provided pursuant to a Statement of Work (“SOW”) attached to a mutually agreed to Order Form.
(n) For customers based in France, please click here for the French language version