TERMS AND CONDITIONS

The following Terms & Conditions constitute a Client/User Agreement between Aqility, Inc. (d/b/a INFUSE Media), its subsidiaries, affiliates, (together “INFUSE Media”) and yourself as User and/or Client of Infuse Media website and its services. The terms described herein shall dictate your rights and obligations while using, visiting or engaging the services and website of INFUSE Media. No access shall be provided until you accept all terms, conditions, policies and guidelines by clicking “I Agree” where prompted.

 

This User Agreement may be amended at any time without notice. Any changes, amendments shall be posted on TOS. Your continued use of the website and/or services constitutes express acceptance of such changes or amendments.

 

Initiation of Service
Use of the Service constitutes Client’s acknowledgment and acceptance of all INFUSE Media’s technical requirements including service specifics to accepting this Agreement. The Client shall implement and comply at all times relevant hereto with the requirements associated and dictated by INFUSE Media for the use of the Service. Such requirements include implementing tags provided by INFUSE Media to input into Client’s website(s), Client’s submission of files for cataloguing associated with Client’s products and/or services offered, supplying INFUSE Media with all logos, banners, gifs, jpegs and related imagery associated with the creation of banners by INFUSE Media on behalf of Client campaign. No dates as provided on Insertion Order by Client are guaranteed if any delay in the above is a result of Client. At no time whatsoever shall Client modify, amend or copy the codes or other technical elements of the INFUSE Media system and related programs.

 

Banners
Client accepts and acknowledges displayed Banners are in accordance with INFUSE Media Services. Furthermore, INFUSE Media reserves its right and discretion to determine frequency and location of Banner display, including display and position next to banners which are deemed competitive in nature to the Banner, directly or indirectly. INFUSE Media reserves it’s right to change the technology behind the Service, without notice or compensation of any kind whatsoever to Client. It furthermore reserves the right to cease displaying any Banners.

 

Location – Best Efforts
INFUSE Media uses best efforts to ensure Banners are not placed on any sites deemed pornographic, offensive, defamatory, illegal or obscene. INFUSE Media shall immediately remove any Banners if Client notifies of such display.

 

Payment Terms.
Pre-Payment of all fees is required.

 

Intellectual Property
Neither party shall acquire any rights to any intellectual property of the other during the term of this Agreement or thereafter. INFUSE Media remains the sole owner of its intellectual property rights before, during and after the term of this Agreement including any enhancements, improvements, modifications, publications, techniques, methodologies, trade secrets, communications as they relate to the Services.

 

Client understands and acknowledges INFUSE Media may use Client date obtained from its use of the INFUSE Media Services as it relates to its normal course of business, including management and testing of the system, maintenance of the Service offered, or if required by law.

 

During the term of this Agreement Client grants INFUSE Media, its affiliates and assigns, a world-wide royalty free transferable license to use, copy, reproduce and represent the Client logos and trademarks, to reproduce, display and represent Client content and any other creative elements of the Banners or related campaign elements on all INFUSE Media networks, third party networks, all documentation printed or electronic which promotes the INFUSE Media Service. INFUSE Media may use Client’s logos and trademarks in its press releases or marketing materials.

 

Warranty Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT, INFUSE MEDIA AND INFUSE MEDIA’S LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INFUSE MEDIA AND ITS LICENSORS MAKE NO REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CLIENT, ITS ADVERTISERS OR ANY THIRD PARTIES SHALL RECEIVE FROM INFUSE MEDIA OR THE INFUSE MEDIA SERVICES PROVIDED UNDER THIS AGREEMENT.

 

FURTHERMORE, CLIENT WARRANTS TO INFUSE MEDIA IT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT, HAS THE RIGHT AND POWER TO PROVIDE INFUSE MEDIA ALL THE CONTENT NECESSARY TO LAUNCH A CAMPAIGN AND RELATED BANNER(S), THAT IT IS NOT INFRINGING ON ANY RIGHTS OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHTS, THAT IT COMPLIES WITH THE INTERACTIVE ADVERTISING BUREAU GUIDELINES AND BEST PRACTICES, THAT CLIENT COMPLIES WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS, THAT CLIENT’S CONTENT DOES NOT CONTAIN ANY PORNOGRAPHIC, OBSCENE, DEFAMATORY, ILLEGAL, CONTENT AND THAT CLIENT SHALL INDEMNIFY AND HOLD HARMLESS INFUSE MEDIA FROM AND AGAINST ALL SUITS, PROCEEDINGS, ASSERTIONS, DAMAGES, INCLUDING DIRECT OR INDIRECT, COSTS, LIABILITIES AND EXPENSES INCLUDING ALL LEGAL FEES, INCURRED AS A RESULT OF ANY BREACH OF THIS CLAUSE OR OF ANY CLAIM WHICH IF TRUE WOULD BE A BREACH OF THIS CLAUSE.

 

Limitation of Liability
In no event shall INFUSE Media be liable to the Client or its Affiliates for any indirect, special, incidental, consequential or punitive damages. INFUSE Media’s liability under this Agreement shall not exceed the aggregate Fees paid and payable to INFUSE Media under this Agreement for the one (1) month period preceding the date the first liability arose. INFUSE Media shall not be liable to Client, its Affiliates or any Advertiser, user, publisher, web site visitor or other third party for loss, cost, damages or expense incurred in connection with Client’s use of the INFUSE Media Services provided under this Agreement, including any technical malfunction, inputting errors, system error, corruption or loss of data, or other damage.

 

Client Data
Client shall insert INFUSE Media certain tags and code as instructed by INFUSE Media into its webpages. Information collected by INFUSE Media as a result of these codes and tags shall be used for the performance and delivery of the INFUSE Media Service only. INFUSE Media shall use the information collected in accordance with Federal and State laws including laws governing privacy and information protection.

 

Client shall have a privacy policy on its webpages and website disclosing to third parties their rights as to the cookies, tags and beacons and informing third parties of the fact such may be sent to them as a result of their use of Client webpages and website.

 

Term & Termination
Subject to a separate written Insertion Order. If no Insertion Order, than 60 days notice.

 

Confidentiality
For purposes of this clause, the term “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, the terms of this Agreement, a party’s finances, Advertiser records and contact information, employee lists, Client Data, information contained within the Client Insertion Order, information about the INFUSE Media or INFUSE Media Services, and business, strategic development and marketing plans.Confidential Information will not include: (i) information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party; (ii) information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party; (iii) information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; or (iv) information that the receiving party developed independently of any disclosures of such information by the disclosing party. Client may not disclose any Confidential Information to any third party except its employees. INFUSE Media may disclose Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information. Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed. The parties agree that monetary damages for breach of confidentiality under this section will not be adequate and the non-breaching party shall be further entitled to injunctive relief. Notwithstanding anything to the contrary contained herein, this Confidentiality provision shall survive the termination of this Agreement and shall be duly enforceable for a period no less than ten (10) years from the date of such termination of the Agreement.

 

Assignability
Client shall not, without the express written permission of INFUSE Media, assign at law or in equity, sublicense or deal with any third party as it relates to this Agreement, the agreed upon Services and any other rights granted hereunder.

 

Governing Law
This Agreement, including its formation, performance, termination and enforcement, together with any related claims whether under contract, tort or otherwise, shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of law principles.

 

Miscellaneous Provisions
This Agreement may be amended by mutual written consent of both Parties.

 

The Parties agree electronic format communication shall be deemed acceptable as a means to relay information as to Insertion Orders or modification of certain portions of this Agreement if supplemented by written acceptance upon agreement.

 

This Agreement is the complete and entire agreement between the Parties and supersedes any preexisting agreements, understandings, commitments, representations whether written, oral or implied.

 

If any provision of this Agreement is deemed unenforceable or found by an administrative body as invalid such invalidity or enforceability shall in no effect the other provisions of this Agreement which shall remain in full force and effect.

 

In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.

 

INFUSE Media, Aqility, Inc. and the logos and associated trademarks are trademarks of Aqility, Inc. Client agrees it will not display or use these trademarks in any manner of form without written authorization from INFUSE Media.

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