Universal Terms & Conditions
Section 1. General. The Program Services Agreement will include the Program Services Enrollment Form, the following Program Services Universal Terms and Conditions, the Additional Terms, if any, and each Legal Notice, if any, applicable to the Service, in each case available to the Client through the Service. The Program Services Agreement forms a legally binding agreement between the Client and the Company in relation to the Services. Capitalized terms shall have the definitions ascribed thereto in Section 18 hereof.
Section 2. Acceptance. In order to use the Services, the Client must agree to the Program Services Agreement. The Client may not use the Services if the Client does not accept the Program Services Agreement. The Client can accept the Program Services Agreement by: (a) clicking to accept the Program Services Agreement, where this option is made available to the Client; or (b) use of the Services, in which case the Client understands and agrees that the Company will treat such use of the Services as acceptance of the Program Services Agreement. The Client may not use the Services, nor accept the Program Services Agreement, if: (i) the Client is not of legal age to form a binding contract with the Company; or (ii) the Client is a Person barred from receiving the Services under the laws of the United States or other countries, including the country in which the Client is resident or from which the Client uses the Services.
Section 3. Services. The Company maintains certain Affiliates with outside of the United States that may provide the Services to the Client on behalf of the Company, and the Client acknowledges and agrees that the Affiliates will be entitled to provide the Services to the Client. The Client acknowledges and agrees that: (a) the form and nature of the Services which the Company provides may change from time to time without prior notice to the Client; (b) the Company may stop, permanently or temporarily, the Services or any features within the Services to the Client at the sole discretion of the Company, without prior notice to the Client; and (c) if the Company disables access to the Client Account, the Client may be prevented from accessing the Services and any other Content contained in the Client Account. The Client acknowledges and agrees that the Client shall only use the storage space provided by the Company in good faith, and in such amount as shall be necessary for the provision of the Services; and that fixed upper limits on the amount of storage space provided by the Company may be set by the Company at any time at the sole discretion of the Company, and without prior notice.
Section 4. Use. In order to access certain Services, the Client may be required to provide certain identification information as part of Service registration or in connection with any use of the Services. The Client agrees that any registration information the Client provides to the Company shall at all times be accurate, correct and current. The Client agrees to use the Services only for purposes that are permitted by the Program Services Agreement and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). The Client agrees not to access, or attempt to access, any of the Services by means other than through the interface provided by the Company. The Client specifically agrees not to access, or attempt to access, any of the Services by automated means (including scripts and web crawlers). The Client agrees that the Client will not engage in any activity that interferes with or disrupts the Services (or the servers and networks connected to the Services), and not to reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. The Client agrees that the Client shall be solely responsible for, and that the Company has no responsibility to the Client or to any third party for, any breach of the obligations of the Client under the Program Services Agreement, including with respect to the consequences of breach.
Section 5. Client Account. The Client agrees and understands that the Client shall be responsible for maintaining the confidentiality of the Client Password associated with the Client Account, and will be solely responsible to the Company for all activities that occur under the Client Account. If the Client becomes aware of any unauthorized use of the Client Password or the Client Account, the Client shall notify the Company immediately.
Section 6. Content. The Client understands that all information, including without limitation, any Content which the Client may access through the Services, shall be the sole responsibility of the Person from which such Content originated. The Client acknowledges that the Content presented to the Client as part of the Services, including but not limited to advertisements and other sponsored Content, may be protected by intellectual property rights which are owned by the advertisers or sponsors that provide such Content to the Company (or by other Persons on their behalf). The Client may not modify, rent, lease, loan, sell, distribute or create derivative works based on such Content, whether in whole or in part, unless the Client has received the prior written permission of the Company, in the case of Company Content, or the other Persons owning the Content, as applicable. The Company reserves the right, but shall have no obligation, to pre-screen, review, flag, filter, modify, refuse or remove any Content from the Service. The Client shall be solely responsible for, and the Company shall have no responsibility to the Client or to any third party for, any Content that the Client creates, transmits or displays while using the Services.
Section 7. Proprietary Rights. The parties acknowledge and agree that each party owns all legal right, title and interest in and to its products and services, including any intellectual property rights which subsist in such products and services, whether those rights happen to be registered or not, and wherever in the world those rights may exist. Each party further acknowledges that the products and services may contain Content which is designated “confidential” by the owning party, and that it shall not disclose such information without the prior written consent of the owning party. Other than those rights granted in Section 8, nothing in the Program Services Agreement gives either party a right to use any trade name, trademark, service mark, logo, domain name or other distinctive brand feature of the other party. The Company may determine to provide certain rights to the Client pursuant to a separate written agreement with respect to any trade name, trademark, service mark, logo, domain name or other distinctive brand feature of the Company; in which case, the Client agrees that the Client use of such features shall be in compliance with that separate written agreement, the Program Services Agreement and the applicable Company guidelines, as updated from time to time. The Client shall not remove, obscure or alter any proprietary rights notices (including copyright and trade mark notices) as are affixed to or contained within the Services, or use any trademark, service mark, trade name, logo of any company or Person in a way that is likely or intended to cause confusion about the owner or authorized user of such trademark, service mark, trade name, logo.
Section 8. License. The Company and the Client hereby grant to each other a non-exclusive, revocable license to use their respective Marks. Each party agrees that it has no right to sublicense any or all of the Marks of the other party, and that such other party shall retain all right, title and interest in its Marks. Each party shall have the right to review the Licensed Use of its Marks by the other party at no cost to the owner of the Marks. Failure of the party who owns the Marks to approve such samples within any given time shall not be deemed approval. Each party agrees that it shall promptly cease all use of any Mark owned by the other party immediately upon the request of the other party. During the term of this Agreement, the Company grants to the Client a limited license to access and use the Software, and the related functionalities and features on the website of the Company, if and to the extent necessary for the Client to receive the Services. The Client shall not, and shall not allow any third party to, exceed the scope of use and access to the Services provided, shall not harm or jeopardize the Services, website or the Software, and shall not reverse engineer, decompile or otherwise attempt to discern proprietary information embodied therein. Subject to the foregoing, and notwithstanding any other provision of the Program Services Agreement, or any prior agreement, arrangement or understanding between the parties, each party hereto reserves all of its right, title and interest in its intellectual property, including trademarks, patents, copyrights, software, trade secrets and other intellectual property. Any purported transfer or other conveyance of such intellectual property by one party to the other in any prior discussions, arrangements, agreements or understandings shall be null and void.
Section 9. Updates. The Software which the Client uses may automatically download and install updates from time to time from the Company. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The Client agree to receive such updates (and permit the Company to deliver these to the Client) as part of the Client use of the Services.
Section 10. Termination. The Program Services Agreement will continue to apply until terminated by either the Client or the Company as set out below. The Client notice should be sent, in writing, to the Company’s address, which is available at [http://www.channelintelligence.com/contactinfo.html]. The Company may, at any time, terminate the Program Services if: (a) the Client has breached any provision of the Program Services Agreement (or has acted in manner which clearly shows that the Client does not intend to, or is unable to, comply with the provisions of the Program Services Agreement);(b) the Company is required to do so by law; (c) any Person with whom the Company offered the Services to the Client has terminated its relationship with the Company or ceased to offer the Services to the Client; (d) the Company is transitioning to no longer providing the Services; or (e) the provision of the Services to the Client by the Company is, in the sole discretion and opinion of the Company, no longer commercially viable. When the Program Services Agreement come to an end, all of the legal rights, obligations and liabilities that the Client and the Company have benefited from, been subject to (or which have accrued over time whilst the Program Services Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by such cessation, and such provisions shall continue to apply to such rights, obligations and liabilities indefinitely.
Section 11. Representations, Warranties and Covenants.
(a)Nothing in these terms exclude or limit the warranty or liability of the Company for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in the Client’s jurisdiction will apply to the Client and the liability of the Company will be limited to the maximum extent permitted by law.
(b)The Client expressly understands and agrees that the Client’s use of the Services is at the sole risk of the Client and that the Services are provided to the Client“as‑is” and“as available.”In particular, the Company, does not represent or warrant to the Client that: (i) the Client use of the services will meet the Client requirements; (ii) the Client use of the Services will be uninterrupted, timely, secure or free from error;(iii) any information obtained by the Client as a result of the Client use of the Services will be accurate or reliable; or(iv) defects in the operation or functionality of any Software will be corrected.
(c)Any Content downloaded or otherwise obtained through the use of the Services is done at the Client own discretion and risk and that the Client will be solely responsible for any damage to the Client that results from the download of any such Content. No advice or information, whether oral or written, obtained by the Client from the Company or through or from the Services shall create any warranty not expressly stated in the terms. The Company further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
(d)The Client agrees to comply with all export and import laws, regulations and restrictions of the United States and its agencies or authorities, and shall not export, re-export or permit sale of any Client products in violation thereof, or without all required approvals, licenses and exemptions. The Client may not export, re-export or permit sale of any Client products to any Person, or any national or resident, of any country subject to United States export restrictions or embargoes.
(e)The Company accepts retailer commissions on account of product sales made through or on account of products or services provided by the Company or other Persons; and the Company represents and warrants that neither the existence nor the amount of any such payments, by any other Person, is expected to result in any material adverse effect on the Services hereunder.
Section 12. Indemnification.
(a)Each party (the “Indemnifying Party”) shall indemnify the other party (the“Indemnified Party”), its affiliates and their respective officers, directors, employees and agents, from and against all loss, damages, costs, expenses, claims and liabilities (including costs of litigation and attorney fees) of the Indemnified Party to third parties arising out of the Program Services Agreement on account of: (i) the breach of any representation or warranty given by the Indemnifying Party in the Program Services Agreement; (ii) the sale, delivery, or quality of the Indemnifying Party’s products or services (except to the extent that the claim arises out of a breach of representation or warranty by the Indemnified Party); (iii) the actual or alleged infringement, misappropriation or other violation of any patents, copyrights, trademarks, trade secrets, or other intellectual property rights that may exist now or in the future by the Indemnifying Party; (iv) any dispute or disagreement between the Indemnifying Party and its suppliers, advertisers, resellers or customers; or (v) any personal injury or death to Persons and damage to property (including the Indemnified Party’s property) to the extent that such injuries, deaths or damage are caused by the Indemnifying Party or any of its subcontractors or by anyone directly or indirectly employed by any of them.
(b)The Indemnified Party shall promptly notify the Indemnifying Party in writing of any demand, action, arbitration, investigation or other proceeding brought or threatened to be brought against the Indemnified Party. The Indemnifying Party shall defend such claim, and pay all costs and expense of such defense, including attorneys’ fees (excluding any attorneys fee incurred by Indemnified Party for retaining its own counsel), and any resulting liability. The Indemnifying Party shall be entitled to exercise exclusive control over any such defense and all negotiations for its settlement or compromise. No settlement or compromise that adversely affects the rights or obligations of the Indemnified Party, however, shall be binding on the Indemnified Party without its written consent, which consent shall not be unreasonably withheld.
Section 13. Limited Liability.
(a)NOT WITHSTANDING THE PROVISIONS OF SECTION 12 ABOVE, THE CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT THE COMPANY SHALL NOT BE LIABLE TO THE CLIENT FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY THE CLIENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR (ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY THE CLIENT, INCLUDING BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF: (A) ANY RELIANCE PLACED BY THE CLIENT ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN THE CLIENT AND ANY PERSON WHOSE ADVERTISING APPEARS ON THE SERVICES; (B) ANY CHANGES WHICH THE COMPANY MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);(C) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT MAINTAINED OR TRANSMITTED BY OR THROUGH THE USE OF THE SERVICES; (D) THE FAILURE TO PROVIDE THE COMPANY WITH ACCURATE CLIENT ACCOUNT INFORMATION; OR (E) THE FAILURE TO KEEP THE CLIENT PASSWORD OR THE CLIENT ACCOUNT SECURE AND CONFIDENTIAL. THE LIMITATIONS ON THE LIABILITY TO THE CLIENT SHALL APPLY WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
(b)IF THERE SHALL BE ANY LIABILITY OF ONE PARTY TO THE OTHER THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THIS AGREEMENT, EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY THE CLAIMING PARTY TO THE LIABLE PARTY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DAY THAT THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM. EACH PARTY ACKNOWLEDGES THAT THE OTHER IS NOT AN INSURER, AND THAT THE PAYMENTS MADE HEREUNDER ARE BASED SOLELY ON THE VALUE OF THE SERVICES AND ARE NOT SUFFICIENT TO WARRANT ASSUMING ANY RISK OF CONSEQUENTIAL OR OTHER DAMAGES DUE TO NEGLIGENCE OR FAILURE TO PERFORM. DUE TO THE NATURE OF THE SERVICES TO BE PERFORMED, IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT (PROXIMATELY OR OTHERWISE) FROM NEGLIGENCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FEES CHARGED, IS NOT A PENALTY, AND SHALL BE EXCLUSIVE. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
Section 14. Content. The Services may include hyperlinks to other web sites or content or resources. The Company may have no control over any web sites or resources which are provided by Persons other than the Company. The Client acknowledges and agrees that the Company is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources. The Client acknowledges and agrees that the Company is not liable for any loss or damage which may be incurred by the Client as a result of the availability of those external sites or resources, or as a result of any reliance placed by the Client on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Section 15. Confidentiality.
(a)In the course of performing under this the Program Services Agreement, each party may receive, be exposed to, or acquire Confidential Information of the other party. Each party shall protect the Confidential Information of the other party by using at least the same degree of care it uses to protect its own Confidential Information of similar importance or sensitivity, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or application of such Confidential Information. Neither party shall, except with the written consent of the other party, disclose the Confidential Information of the other party, or use it, except to its employees, contractors, and agents who have a need to know for purposes of this Agreement. Each party shall cause its employees, contractors, and agents receiving the Confidential Information to execute written nondisclosure agreements which provide the same or greater protection for such information as this section provides. Neither party’s receipt of Confidential Information under the Program Services Agreement shall create any obligation that in any way limits or restricts the assignment or reassignment of its employees or agents to different positions. If a party is required to disclose Confidential Information pursuant to court order or government authority, such party shall provide reasonable notice where feasible to the other party prior to such disclosure and shall cooperate with the party to obtain protection from such disclosure. Anything to the contrary in this Agreement notwithstanding, neither party may use or exploit Residuals for any purpose.
(b) The Company currently uses, and expects to continue to use, all data collected by the Company in an aggregate manner, such as non-personal or company-identifiable demographic information. The Client acknowledges that: (i) the Company utilizes the data it collects from the Client concerning sales, inventory, pricing and transactions by manufacturers, distributors, advertisers, retailers and other Persons, including transactions involving the Client and the Client products, in connection with other services of the Company; and (ii) the Company may utilize transactional data involving the Client or the Client products as part of aggregate data collections compiled by the Company in order to analyze product and service trends, monitor product and service efficiencies and perform other analyses of products and services,provided that Confidential Information of the Client shall not be disclosed and may not be deduced, inferred, derived or otherwise extracted from such aggregate data. The Client further acknowledges that Client has no proprietary interest in any such data, or any data involving third Persons that could be gathered or compiled by the Company even in the absence of this Agreement, nor any right to confidential treatment thereof. Notwithstanding any provision herein to the contrary or otherwise, the Company shall not be prohibited or otherwise restricted in any manner from providing similar or different products or services to third Persons other than the Client, such as any customer, supplier or competitor of the Client, provided that the Company shall not disclose any Confidential Information of the Client.
(c) Upon reasonable request from the Company, the Client shall provide the Company with sales and marketing information applicable to the Products from time to time in order to assist the Company in establishing relationships with the Client or other Persons. The Client shall provide reasonable cooperation with respect to efforts made by the Company to: (i) improve the tracking and reporting of transactions made or registrations submitted in connection with the Services; and (ii) implement and test the Services and the Software.
(d)The Company shall provide Client with a Image Tag to allow for tracking of the transactions occurring in connection with the Services; and the Client will not take any action with respect to this Image Tag that would interfere with ability of the Company to carry out tracking and will provide reasonable advance notice to the Company of any action reasonably expected to have such effect. In the event the Client modifies, alters, deletes, disables, fails to serve or takes any other action with regard to the Image Tags provided to the Client, the Client shall pay to the Company for each day, or pro-rataportion thereof, during which the ability of the Company to track shall have been hindered, the average dollar amount of the fees earned by the Company during the seven day period immediately preceding the period of time during which the tracking ability of the Company shall have been hindered.
Section 16. Records. The Client shall maintain logs and business and financial records that contain information sufficient to verify the completeness and accuracy of the Service Fees for a period of at least three calendar years from the date such information relates. Throughout the term of this Program Services Agreement, the Company shall have the right, at its own expense and on 30 days advance written notice to Client, to examine the Records. In the event such examination indicates inaccuracy with respect to the payment of the Company, the Client shall pay the Company any shortfall amounts, plus simple interest of 1.50% per annum thereon.
Section 17. Precedence. The Program Services Agreement constitutes the entire agreement and understanding between the Client and the Company regarding this subject matter thereof, and supersedes all proposals representation, claims and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral. No terms and conditions other than those set forth in the Program Services Universal Terms and Conditions or any Program Services Enrollment Form shall be binding on the Company unless expressly agreed to in writing by the Company. The terms of any Program Services Enrollment Form govern only the Services covered thereby, and no other Services, except as otherwise specifically referenced in such Program Services Enrollment Form.
Section 18. Miscellaneous.
(a)The Company may make changes to the Program Services Agreement from time to time. When these changes are made, the Company will make a new copy of the Program Services Agreement available at [■], and shall be effective seven calendar days after the date so published. By continuing to use the Services after the date so published, the Client agrees to be bound by the revised terms.
(b) The Program Services Agreement constitutes the whole legal agreement between the Client and the Company and governs the use of the Services (but excluding any services which the Company may provide to the Client under a separate written agreement), and completely replaces any prior agreements between the Client and the Company in relation to the Services.
(c)The Client agrees that the Company may provide the Client with notices, including those regarding changes to the Program Services Agreement, by email, regular mail or postings on the Services.
(d)The Client agrees that if the Company does not exercise or enforce any legal right or remedy which is contained in the Program Services Agreement (or which the Company has the benefit of under any applicable law), this will not be taken to be a formal waiver of the rights of the Company and that those rights or remedies will still be available to the Company.
(e)If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Program Services Agreement is invalid, then that provision will be removed from the Program Services Agreement without affecting the rest of the Program Services Agreement. The remaining provisions of the Program Services Agreement will continue to be valid and enforceable.
(f)The Client acknowledges and agrees that each of the Affiliates shall be third party beneficiaries to the Program Services Agreement and shall be entitled to directly enforce and rely upon any provision of the Program Services Agreement which confers a benefit on (or rights in favor of) them. Except as set forth above, no other Person or company shall be third party beneficiaries to the Program Services Agreement.
(g)The Program Services Agreement, and the Client relationship with the Company under the Program Services Agreement, shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The Client and the Company agree to submit to the exclusive jurisdiction of the courts located within the county of Osceola, Florida to resolve any legal matter arising from the Program Services Agreement. Notwithstanding this, the Client agrees that the Company shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
(h)Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Orlando, Florida, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.
(i)In the event of litigation or any other legal action in connection with the enforcement or interpretation of this Agreement in addition to all other remedies, the prevailing party shall be entitled to recover from the other party all of its costs and expenses incurred in connection with such litigation or arbitration, including reasonable attorneys’ fees, through the date of final collection.
(j) Neither party shall be liable for failure to perform its obligations hereunder, except the obligation to make payment, if such failure is the result of strikes, riots, fires, explosions, acts of God, war, governmental action, labor conditions, or any other cause beyond the reasonable control of such party.
(k)Notwithstanding any provision hereof, for all purposes of this Program Services Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
(l)Either party may upon notice to the other party assign the Program Services Agreement in whole as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets, provided that the Client may not assign the Program Services Agreement to any Restricted Person. Except as otherwise set forth above, the Client may not assign this the Program Services Agreement or its rights or obligations under the Program Services Agreement to any Person, whether by operation of law or otherwise, without the prior written consent of the Company, which consent shall be delivered or withheld at the sole and absolute discretion of the Company. Any attempt by the Client to assign the Program Services Agreement without such prior written consent, where such consent is required, shall be null and void. Subject to the foregoing, the Program Services Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns.
(m)The Client agrees to be responsible for and pay all Taxes of the Client.
Section 19. Defined Terms. All capitalized terms used herein shall have the definitions ascribed thereto as follows:
- “Affiliate” shall mean, with respect to any Person, any other Person which controls (directly, or indirectly through one or more intermediaries) the Person in question, or any other Person which is (directly, or indirectly through one or more intermediaries) controlled by or under common control with the Person in question. For the purposes of this definition,“control” (including the terms“controlled by” or “in common control with”) means the possession (directly, or indirectly through one or more intermediaries) of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
- “Client” shall mean the Person that shall have executed the Program Services Agreement with the Company.
- “Client Account” shall mean the online account of the Client with respect to the Services.
- “Client Password” shall mean the unique password of the Client that allows for secure access to the Client Account.
- “Company” shall mean Channel Intelligence, Inc., a Delaware corporation, and any Affiliate thereof.
- “Confidential Information” shall mean all of the information regarding any products or services related to the Services, which constitute reliable trade secrets or proprietary business information, including, without limitation, such information as encompassed in all drawings, designs, formulas, devices, compilations, computer programs and software devices, plans, manuals, proposals, financial information, costs, pricing information, marketing or sales plans, accounting, customer lists or any other trade secrets or proprietary information whether now existing or hereinafter developed whether it gives the disclosing party any competitive advantage over those who do not know or use it, or whether it is patentable or subject to copyright or trademark protection.
- “Content” shall mean any and all human readable patent audio and/or visual elements of this Site, created or owned by any Person, including, without limitation, any text, graphics, images, illustrations, photographs, animations, video, audio or audiovisual works (including, for example, without limitation, movie trailers or episodic works), designs, logos, information, and other content.
- “Image Tag” shall mean a one-by-one (1×1) clear pixel used to track transactions occurring in connection with the Services.
- “Indemnified Party” shall mean have the meaning as set forth in Section 12 hereof.
- “Indemnifying Party” shall mean have the meaning as set forth in Section 12 hereof.
- “Licensed Use” shall mean the non-exclusive, revocable license to use the Software and the Marks to the extent necessary and appropriate for the performance under the Program Services Agreement.
- “Mark” shall mean the trade names, trademarks and service marks of a Person.
- “Person” shall mean any corporation, business entity, natural person, firm, joint venture, partnership, trust, unincorporated organization, association, government or any department or agency of any government.
- “Program Services Agreement” shall mean the Program Services Enrollment, the Program Services Terms and Conditions, the Additional Terms, if any, and each Legal Notice, if any, applicable to the Service, in each case available to the Client through the Service.
- “Program Services Enrollment Form” shall mean the form completed by the Client and submitted to the Company in respect of the applicable Services selected to be provided by the Company.
- “Program Services Universal Terms and Conditions” shall mean the Program Services Terms and Conditions applicable to the Program Services Enrollment Form.
- “Records” shall mean documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations, stored in any medium from which information can be obtained either directly or, if necessary, after translation into a reasonably usable form.
- “Residuals” shall mean ideas and concepts learned by one party’s employees as a result of their exposure to the other party’s Confidential Information and retained in the memory of such employees after their last exposure to any computer code, documentation or materials containing the other party’s Confidential Information.
- “Restricted Person” shall mean any Person involved in the business of providing internet marketing services for manufacturers, retailers or publishers.
- “Services” shall mean the services provided the Company to the Client, including the Software licensed in connection therewith.
- “Software” shall mean the software technology of the Company used in connection with the Services, including all source code, object code, modules and programmer notes related to the software technology of the Company used in connection with the Services and all other intellectual property rights related thereto.
- “Taxes” shall mean, with respect to any Person, all sales, use, service, income or other taxes of any governmental authority (other than taxes on the net income of such Person), however levied, including interest and penalties thereon, if any, arising from or relating to sales of the products of such Person in connection with the Program Services Agreement.