Terms of Service

1. THIS SOFTWARE SERVICES AGREEMENT

This Software Services Agreement (the "Agreement") is entered into and becomes effective as of the date you ("Client" or "You") click an "Agree" or similar button, or by installing or using the software services (as defined below). This agreement is a legally binding contract between BidZen and sets forth the terms and conditions that govern your use of the software services. By clicking an "Agree" or similar button or by using the software services, you accept and agree to be bound by all of the following terms and conditions of this agreement. Modifications or additions by you to these terms and conditions will not be accepted by BidZen and will not be a part of this agreement. BidZen has complete discretion to modify this software services agreement from time to time and to change the terms, conditions, or features of the software services from time to time. BidZen may make such changes without notice. If you continue to use the software services after any such changes, with or without notice, you will be considered to have consented to them.

2. Terms of Service

2.1. Customer Must Have Internet Access.

DSL, cable or another high speed internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" software that supports protocols used by BidZen, including Secure Socket Layer (SSL) protocol or other protocols accepted by BidZen, and to follow login procedures for services that support such protocols. BidZen is not responsible for notifying Customer of any upgrades, fixes, or enhancements to any such software, or for any compromise of data, including Customer Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by BidZen. BidZen assumes no responsibility for the reliability or performance of any connections as described in this Section.

2.2. Client's Obligations.

License Restrictions Client will (i) be responsible for its and its Authorized Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data and of the means by which Client acquired Client Data; (iii) not provide, permit, enable, or assist others to access the Software Services, except under the terms listed herein, and that Client will be responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (vi) not use the Software Services to build a competitive product or service; (vii) not access the Software Services, or any of our intellectual property, or that of a direct competitor of BidZen or its affiliated entities for the purposes of monitoring the Software Service's availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights; (ix) not use the Software Services to store or transmit malicious code; or (x) interfere with or disrupt the integrity or performance of the Software Services. (Also See Fair Use / Non-Compete Clause)

2.3. Users: Passwords, Access, And Notification.

Customer shall authorize access to and assign unique passwords and user names. User logins are for designated Users and cannot be shared with more than one User, but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Service. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer's account. Customer agrees to: (a) notify BidZen immediately upon learning of any unauthorized use of any Electronic Communication sent through the Service; and (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify BidZen of any unauthorized access or use. Customer is and will remain solely responsible for any unauthorized use of or theft or unauthorized use on account or Service account numbers.

2.4. Customer's Lawful Conduct.

The Service allows Customer to send Electronic Communications directly to BidZen and to third parties. Customer must comply with all applicable local, state, federal, and international laws, treaties, and conventions, including those related to data privacy, electronic communications, and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card complies with applicable Payment Card Industry Data Security Standards (PCI DSS"). Customer shall use the Service in compliance with the Acceptable Use Policy. Customer shall comply with all applicable laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any licenses, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; (ii) Customer will not use the Service to access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (iii) Customer will comply with all applicable laws and regulations regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication if such Communication is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive or another's privacy, hateful, or racially, ethnically or otherwise objectionable. Electronic Communications may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces provided by BidZen. Customer agrees not to use any "mirroring" or "framing" of any part of the Services. Customer agrees to use the Service including log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer's Electronic Communications are endorsed by BidZen. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement including but not limited to those Uses that are contractors and agents, and Customer's Affiliates. Any action or breach by any such contractors, agents or Affiliates shall be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer's or such contractors' or Affiliates' acts, omissions and noncompliance with this Agreement.

2.5. Non-Compete / Your Representations.

You represent and warrant that you or any of your affiliate companies are not a competitor of BidZen and you are not using the Service and/or Licensed Program to engage in and permit others to engage in, any competitive activities. You represent and warrant that (i) you are aware of and acknowledge the capabilities and limitations of the Service and/or Licensed Program; (ii) you have all permissions and licenses, including under applicable data protection policies, confidentiality and non-competition restrictions, to submit customer order to the Service and use it through the Service. Customer agrees that they or any officers of customer's company will not develop a competing service to BidZen and the Service during the term of this Agreement and for five years thereafter. Violation of this clause is grounds for immediate account termination by BidZen with no liability on the part of BidZen. BidZen may seek relief in equity as well as any other available remedies. Customer may be held liable for damages Customer and third parties under the law. Customer understands and agree that during the term of the Agreement, and for five (5) years after the last date of Customer using the Application or any service made available by BidZen, Customer will not directly or indirectly operate, work with, offer, develop, distribute, endorse, or sell a competing service. A "competing service" is defined as Service that provides a creative, ad, or campaign creation software system with analytics and automation rules for optimization for content discovery networks such as Outbrain, Taboola, Revcontent, ContentAD, MGID or other content discovery networks distributing in the form of Native Ads as defined by the IAB. Customer understands and agrees that violation of this clause will be grounds for immediate termination of this Agreement without liability on the part of BidZen. No assignment or Resale: You may not rent, resell, assign, or transfer your rights under this Agreement, and if you attempt to resell, assign, or transfer its rights, BidZen may immediately terminate this Agreement without liability to BidZen.

2.6. Transmission of Data.

Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to use of the Service. Customer thereby consents to BidZen's interception of Customer's Electronic Communications for this purpose. Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by BidZen. Customer further acknowledges and understands that Electronic Communications may be adversely affected or interrupted. Customer acknowledges that it is responsible for maintaining and protecting backups of all Customer Data stored in the Services. BidZen is not responsible for Customer Data, and shall not collect and track technical and related information about Customer and Customer's use of the Software Services, including Customer's internet protocol address, the hardware and software that Customer utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate the provision of updates to the Software, product support, and other services to Customer, and to assist in research and development. In the event that BidZen is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsive of law, if legally permitted, BidZen will provide Client with reasonable advance notice to allow the Client to seek a protective order or other appropriate relief. Customer agrees to allow BidZen is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whenever across networks not owned and/or operated by BidZen, including, but not limited to, the Internet and Customer's local network.

2.7. Service Level.

During the Term, the BidZen Service will meet the service level specified in the "Service Level Commitment" listed on Schedule 1 herein, which is hereby incorporated by reference. If the service level is not met, Customer will receive the remedies specified in the Service Level Commitment, to a credit for the month in question in accordance with the terms set forth in the Service Level Commitment. The respective Service's system logs and other records shall be used for calculating any service level events.

2.8. BidZen Support.

As part of the Service, BidZen will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Customer acknowledges that BidZen has expertise in the creation and integration of third party applications on the Service, and that not following the advice of BidZen may substantially limit Customer's ability to successfully utilize the Service or to enjoy the power and potential of the Service.

2.9. Security.

BidZen shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.

2.10. Confidentiality.

For purposes of this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects, that (a) is designated as Confidential at the time of disclosure; (b) reasonably should be known by the Receiving Party to be confidential. Customer Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the pricing and any information of the Service is always considered confidential information of the respective party at all times. Confidential Information does not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate or anonymized data that does not identify Client or any of its Users. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information); and (d) to promptly notify the other party if it becomes aware of any breaches of confidentiality hereunder. Each party may disclose Confidential Information on a "need to know" basis (i) Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement; (ii) In addition, BidZen will prohibit the employees of Customer from the disclosure of such information; Each party may disclose Confidential Information if permitted by order of a court or other governmental authority or regulation. The parties agree that any material breach of Section 2.2, 2.5 and this Section will cause irreparable injury and that injunctive or other equitable relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.

2.11. Ownership of Customer Data.

As between BidZen and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. It is also noted that BidZen has the authority to use Customer's Data in the aggregate and for internal purposes only. Customer acknowledges and agrees that in connection with the Service, BidZen as part of its managed Service, creates, duplicates and makes copies of the Customer Data in order to provide the Service to Customer and stores and maintains such data for a period of time consistent with BidZen standard business processes, which period shall not be less than one year.

2.12 BidZen Intellectual Property Rights.

Service License Customer and licensees of the word "purchase" in connection with licenses of the Software Services shall not imply a transfer of ownership/Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by BidZen or its licensors. Except as provided in this Agreement, BidZen grants no licenses or any intellectual property rights in the Service and all other intellectual property rights therein. In addition, BidZen shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any Marks not expressly granted herein are reserved by BidZen. All product and service names are property of BidZen (collectively the "BidZen Marks"). Customer agrees not to display or use the BidZen Marks in any manner without BidZen's express prior written permission. The trademarks, logos and service marks of Third Party Applications ("Third Party Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.

2.13 Dispute Resolution.

If any party sustains before or if an employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.

3. General

3.1 Relationship of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. BidZen can use any data, statistics, metrics, tools, experiences derived from Client and/or any aggregate/anonymized data to improve its services to other entities, including, without limitation, other similar customers. Client understands and acknowledges that BidZen is free to use some or all of the data, tools, techniques, methodologies, forms, formula, templates and materials of the services provided by BidZen hereunder in providing products or services to other customers and nothing in this Agreement shall be construed to limit BidZen's right to do so.

3.2 Third Party Services.

If the Client uses any third party service with the Software Services (including services that may use any application programming interface (API) provided by BidZen), the Client acknowledges that the third party service may access or use the customer's information. BidZen will not be responsible for any act or omission of the third party, including such third party's use of the customer's information. The Client agrees to contact the third-party service provider for any issues arising from the Client's use of the third party service.

3.3 Compliance with Applicable Laws.

The Software Services are protected by intellectual property laws and other laws of the United States and international laws and treaties, including without limitation copyright and export laws. Client agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to Client including its use of the Software Services, including, but not limited to, applicable law and any obligations and applicable restrictions concerning intellectual property rights. Client agrees that it shall abide by all applicable export control laws, rules and regulations applicable to its use of the Software Services.

3.4 Entire Agreement.

This Agreement constitutes the final, complete and exclusive agreement among the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, whether written or oral, between the parties regarding the subject matter hereof. Client understands and agrees that BidZen's published Website "Terms of Use", as the same may be modified by BidZen from time to time in accordance therewith provided that Client has been given notice of any such modifications, specifically apply to the Software Services provided hereunder and are binding upon Client and its Authorized Users. In the case of a conflict between a provision in this Agreement and a provision in the "Terms of Use" of the Website, the terms of this Agreement will control. Standard Terms or conditions appearing on a purchase order or similar document issued by the Client do not apply to the Software Services, do not override or form part of this Agreement, and are void.

3.5 Waiver.

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver of any breach or provision of this Agreement will be deemed a waiver of any subsequent breach or of any other provision.

3.6 Severability.

The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court's substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.

4. Definitions

"Affiliate" means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer. "Customer Data" means all electronic data or information submitted to the Service by Customer or its authorized Users in the form of files, content or images, digital documents, design elements, content or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service. "Order Form" means a BidZen renewal notification identifying the number of users and supported by Customer from time to time. "Services" means the products, features and services, including without limitation the BidZen Subject to the terms of this Agreement. "Help Documentation" means the online help center documentation describing the Service features, including User Guides which may be updated from time to time. "Service" collectively "BidZen online business application suite (the "BidZen Service") as described in this applicable Help Documentation that is Authorized by Customer from time to time in the Agreement. "Third Party Applications" means online, Web-based applications or services and offline software products and/or services that are licensed by third parties other than BidZen, that interoperate with the Service and for which integrations, accounts, subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by BidZen at Customer's request). Users may include but are not limited to Customer's and Customer's Affiliates' employees, consultants, contractors and agents.