Terms & Conditions
As part of the “Service”, “Advertory” will provide the “Customer” with use of the Service, including a browser interface and data transmission, access and storage. Customer’s registration for, or use of, the Service shall be deemed to be agreement to abide by these Terms of Service(“Agreement”) including any materials and terms available on the Advertory website incorporated by reference herein, including but not limited to Advertory’s privacy and security policies.
The Service is offered for the following software applications:
advertory Affilate Program
Application means one or more of the Advertory software applications listed above.
Advertory means Advertory GmbH of Advertory GmbH, Rosa-Luxemburg-Strasse 7, 10178, Germany.
Dedicated Instance Hosting means Advertory provides the Customer with a dedicated instance of the Application(s) on a single Java Virtual Machine (JVM). Customer may share the physical hardware associated with the Application platform with other Customers. Fees means the charges by Advertory for subscription to or use of the Service. Order Form means the Advertory order form or forms and any ancillary Advertory terms completed and processed by and with Customer to sign up for the relevant Service. Service means Dedicated Instance Hosting of the specific Advertory software Application identified during the ordering process, developed or licensed, operated, and maintained by Advertory, accessible via www.advertory.com or another designated Advertory web site or IP address, or ancillary online or offline products and services provided to Customer by Advertory, to which Customer is being granted access under this Agreement. Customer means the individual or entity that has subscribed for the Service under the terms and conditions of this Agreement. Term means the Initial Term or any Renewal Term, as defined in Section 7 below. USD means United States Dollars. User means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by or for Advertory at Customer’s request). Advertory Champion means Customer who signs up as the administrative of Advertory and is the primary contact on behalf of Customer. Client means the Clients who are serviced by Customers, which include but not limited to, borrowers and savers.
3 Terms Of Service For Advertory Applications
3.1 Terms of Service
Please read carefully the following Terms of Service. By accessing to this address and any of its pages (hereinafter, the “Website”), you will be considered a user and are thought to have accepted theseTerms of Service. Customer acknowledges and agrees to the Terms of Service herein. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Customer will be subject to this Agreement. You agree that you are responsible for your own conduct and Content while using the Service and for any consequences thereof. You agree to use the Service only for purposes that are legal, proper and in accordance with these Terms of Service. You can accept the Terms by actually using the Services. In this case, you understand and agree that Advertory will treat your use of the Services as acceptance of the Terms of Service from that point onwards. Before you continue, you should print off or save a local copy of the Terms of Service for your records.
3.2 Liability and Guarantee of Advertory
Advertory has obtained the Information and materials included on the Website from sources considered to be reliable. However, although reasonable measures have been taken to ensure that the information contained is correct, Advertory does not guarantee that it is exact, complete or up to date and, as a result, should not be relied upon as though this were the case. Advertory expressly declines any liability due to error or omission in the Information contained on the pages of this Website.
Advertory reserves the right to modify, suspend, cancel or restrict the content of the Website, as well as the links or the information obtained through it, without prior notice. Under no circumstances will Advertory, its branches and/or directors, employees and authorised staff be liable for any type of damage, loss, claim or cost of any kind, whether this result from the use of the Website, the Information acquired or accessed through or by it, for any computer viruses, from operating faults or interruptions in the service or transmission or faults on the line. Use of the Website by both direct connection and link or by any other means constitutes a warning to any user that these eventualities may occur.
It is prohibited to transmit or send any illegal or illicit content, computer virus or messages through the Website that generally affect or infringe the rights of Advertory or others. Advertory accepts no liability for external websites that can be accessed by means of links or for any content provided by third parties. Any use of a link or access to an external website is undertaken at the will and exclusive risk of the user. Advertory neither recommends or guarantees any information obtained by or through a link, nor does it accept liability for any loss, claim or damage derived from the use or misuse of a link, or from the information obtained through it, including other links or websites, from interruptions in the service or in access or from the attempt to use or misuse a link, either when connecting to the Website or when accessing information on other websites from the Website.
3.3 Customer Must Have Internet Access
In order to use the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
3.4 Accuracy Of Customer’s Registration Information
Customer agrees to provide accurate, current and complete information (“Registration Data”) about Customer as prompted by the registration form, which Customer will fill out online in order to gain access to the Service. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or Advertory has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Advertory has the right to suspend or terminate Customer’s account.
3.5 Email And Notices
Customer agrees to provide Advertory with Customer’s email address, to promptly provide Advertory with any changes to Customer’s email address, and to accept emails (or other electronic communications) from Advertory at the email address Customer specifies. Except as otherwise provided in this Agreement, Customer further agrees that Advertory may provide any and all notices, statements, and other communications to Customer through either email or posting on the Service.
3.6 Passwords, Access, And Notification
a) You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
b) The Customer must provide and assign unique passwords and User names to each authorized User for each seat purchased. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or User names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and User names.
3.7 Third-Party Software
Customer agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by Advertory. Until notified otherwise by Advertory, Customer agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by Advertory and to follow logon procedures for services that support such protocols. Customer acknowledges that Advertory is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Advertory or telecommunications facilities, including, but not limited to, the Internet.
3.8 Transmission of Data
Advertory employs security measures designed for the protection of information and data. However, Customer understands that the technical processing and transmission of Customer’s electronic communications is fundamentally necessary to Customer’s use of the Service. Customer agrees that Advertory is not responsible for any electronic communications and/or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Advertory.
3.9 Proprietary Rights
a) Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
b) Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Advertory owns all right, title, and interest in the Service, Applications and the Advertory Technology and underlying software and proprietary and intellectual property rights therein. The use by Licensee of any of these rights is authorized only for the purposes set forth herein and upon expiration or termination of this Agreement for any reason such authorization will cease.
Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure (“Confidential Information”). Confidential Information will also include the Applications, Software, Documentation and any new product or service information. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate “need to know” the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement. Notwithstanding the above, Advertory may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address.
3.11 Financial and Stock Market Information
This Website provides no type of investment recommendation or legal, tax or other advice, and nothing included in it should be taken as the basis for investments or decision-making. Similarly, the information contained on this Website is published for general use and does not take into account specific investment objectives, financial status or the particularly requirements of any Person. You should obtain suitable and specific professional advice before deciding on any investment. The value of investments may rise or fall, a circumstance that investors must accept, including the risk of not recovering the sum invested, either partly or in full. Furthermore, the statement of past returns does not constitute a promise or guarantee of future returns.
The contents of this Website are solely for informative purposes and should under no circumstances be used or considered as an offer of sale, request for an offer of purchase or recommendation to undertake any other transaction, except where expressly indicated. Any decision to purchase by the recipient must be adopted according to public information on the security and, where appropriate, in line with the legislation.
3.12 Industrial Property and Copyright
This Website is the property of Advertory GmbH. The copyrights and operating and reproduction rights of this Website, its pages, screens, the information they contain, their appearance and design and the hyperlinks from it to other websites of any company belonging to Advertory GmbH are the exclusive property of Advertory GmbH, unless otherwise specified. All the names, designs and/or logotypes which comprise this Website are duly registered trademarks. Any undue use thereof by a person other than their legitimate owner may be prosecuted in accordance with current legislation. The copyrights and trademark rights of third parties are suitably highlighted and must be respected by anyone accessing this Website. The contents may be downloaded and any page on this Website copied or printed for personal and private use only. It is prohibited to reproduce, transmit, modify or delete the information, content or notices on this Website without the prior written authorization of Advertory GmbH.
4 Restrictions And Responsibilities
a) This is a contract for Services and the Application software will be installed, accessed and maintained only by or for Advertory and no license is granted thereto. Customer agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Application, software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Advertory’s standard policies then in effect (the “Policy”) and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Customer hereby agrees to indemnify and hold harmless Advertory against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Advertory has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Advertory may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
b) Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, web services, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment and services are compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Advertory’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, ancillary services, passwords (including but not limited to Advertory Champion and User passwords) and files, and for all uses of Customer account, Services or the Equipment with or without Customer’s knowledge or consent.
5 Fees, Billing and Renewal
Unless otherwise indicated by Advertory for the relevant Service, Fees for the subscription or use of a Service are payable and remitted to Advertory, as further described immediately below.
Payments made by the Customer under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Advertory, the Customer must pay to Advertory the amount of such taxes or duties in addition to the Service Fees under this Agreement. Notwithstanding the foregoing, the Customer may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, Customer shall have the right to provide to Advertory with any such exemption information and Advertory will use reasonable efforts to provide such invoicing documents as may enable the Customer to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
The per-unit pricing, “Active Clients per Month” during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
5.1 Monthly Plans
a) Unless otherwise indicated by Advertory, Advertory charges and collects Fees in advance for use of the Service. During any Term, Advertory will automatically renew and bill Customer’s credit card or issue an invoice (a) every month for monthly service, or (b) as otherwise mutually agreed upon. Our charges for monthly plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the “Term.” Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the “Pay Date”). If the Term ends before such payment is due, you will still be required to make payment.
b) As long as you are a Customer or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
c) Whenever you increase the number of “Active Clients”, it will affect your monthly bill, and will require you to pay the difference in the monthly payment before the next month commences.
You may elect to buy “Pre Paid” credit to use our Services, as explained on the “Pricing” page of our website, rather than sign up for a monthly plan. If you elect a “Pay-as-You-Go” you will still be considered a Customer and all the terms of this Agreement will still apply to you other than the requirement that you pay us monthly. You will be responsible to ensure you have sufficient credit to use our Service, and Advertory will not be required to provide Services to Customers with insufficient credit.
We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any Customer seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.
6 Non-Payment And Suspention
All payments for Fees shall be due according to the terms in Section 5 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Advertory herein, Advertory reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent. Delinquent invoices are subject to interest charges of 1.8% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for Active Clients during any period of suspension. If Customer or Advertory initiates termination of this Agreement, Customer will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Customer agrees that Advertory may charge such unpaid Fees and charges to Customer’s credit card or otherwise bill Customer for such unpaid Fees and charges. Customer agrees and acknowledges that Advertory has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account becomes delinquent for over a period of 12 months.
7 Term, Terminiation and Removal
a) Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for Active Client Credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause. Once terminated, we may remove any of your Data and files from our Website and any other storage. Additionally, if you do not log in to your account for 12 or more months, we may deem your account delinquent and permanently delete your account and all data associated with it.
b) Any breach or delinquency of Customer’s payment obligations or unauthorized use of the Advertory Technology or Service will be deemed a material breach of this Agreement. Advertory, in its sole discretion, may terminate Customer’s password, account or use of the Service and this Agreement if Customer breaches or otherwise fails to comply with this Agreement. In addition, Advertory may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that Advertory has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 30 days of payment delinquency or notice of such breach.
c) Sections 2 (Definitions), 3 (Terms of Service for Advertory Applications), 4 (Restrictions and Responsibilities), 5 (Fees, Billing and Renewal) (surviving until all Fees and charges are paid and Customer responsibilities fulfilled), 6 (Non-Payment and Suspension) (surviving until all Fees and charges are paid), 7 (Term, Termination and Removal), 8 (Assignment, Successors and Assigns), 11.b. (Indemnification), 12 (Disclaimer of Warranties), 13 (Exclusion of Damages and Limitation of Liability), and 14 (“General Provisions”), shall survive expiration or termination of this Agreement.
8 General Rules
You agree to the following:
a) You will not share your password.
b) You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from Advertory.
c) Who Can Use Advertory – If you do not meet these eligibility requirements, you may not use the Advertory service:
- You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
- You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
- Advertory does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.
d) Data Archival – Our servers store tons of data. Occasionally, we need to archive and/or delete some of it to make room for new data, so that we don’t have to keep raising prices in order to afford more and more servers. Here are our data archiving rules:
- Old, pay-as-you-go Customers – For pay-as-you-go accounts or free accounts, data that has been inactive for 12 months or more may be archived and removed from online access. If you want to keep your own copy of all of your data then you can use our Export Feature, which allows you to export the information in your Advertory account as a .csv file. Warning depending on the size of your account exports may take a while to complete.
- Fees, Refunds, Account Suspensions, Etc.
e) Advertory reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
f) If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or ban access to accounts, without refund.
g) If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
h) You agree to pay for all Active Clients you manage from your account.
i) For pay-as-you-go (prepaid) accounts, your Active Client Credits “roll over” and do not expire. However, if you do not log in to your account at least once for 12 months, your account (including all data) may be removed and deleted permanently from our system.
9 Assignment, Successors And Assigns
Customer shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of Advertory, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.
10 Publicity Rights
Customer grants Advertory the right to include the Customer as a customer in Advertory’s promotional material. Customer can opt to have their name excluded from such use by Advertory except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to hello@Advertory.com; the subject line in such email should be entitled “Non-use of Customer Name.”
11 Representations & Warranties
a) Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Advertory represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and substantially in accordance with the online Advertory help documentation under normal use and circumstances. Customer represents and warrants that Customer has not provided any false information to gain access to the Service and that billing information is correct.
b) To the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
a) By Advertory. Advertory shall defend, indemnify and hold Customer harmless from all settlements agreed to by Advertory and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Customer infringes a third party’s patent or copyright. Customer will be entitled to indemnification only (i) if Customer notifies Advertory in writing within ten (10) days of the date Customer first becomes aware of a claim; (ii) Advertory has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) Customer gives Advertory all reasonably available information and assistance, at Advertory’s expense. Advertory may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Advertory’s sole discretion, terminate Customer’s right to the allegedly infringing Service and refund to Customer a pro rata portion of the amount which Customer has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from (a) modification of the Service by parties other than Advertory, (b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service, or (c) use of the Service other than in accordance with Advertory instructions and documentation. THE FOREGOING STATES ADVERTORY’S SOLE OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
b) By Customer. Customer shall defend, indemnify and hold Advertory harmless from all third party claims and settlements agreed to by Customer and all costs and direct damages awarded to a third party to the extent they arise out of Customer’s infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. Advertory agrees that (i) it shall provide written notice promptly after it first becomes aware of a claim; (ii) Customer shall have sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) it shall give Customer all reasonably available information and assistance, at Customer’s expense. Advertory shall have the right to participate in the defense or settlement with counsel of its own choosing at Advertory’s expense, provided however that the same shall be at Customer’s expense if Customer fails to put on an adequate defense of Advertory.
13 Disclaimer Of Warranties
ADVERTORY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH. ADVERTORY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 11, THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS; ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY ADVERTORY AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14 Exclusion Of Damages And Limitation Of Liability
IN NO EVENT WILL ADVERTORY’S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO ADVERTORY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. ADVERTORY WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF ADVERTORY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
15 General Provisions
This Agreement is governed by the laws of Germany and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Germany. This Agreement, including all Order Forms provided by and entered with Advertory in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Customer purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. No amendment or waiver of this Agreement shall be effective unless signed by authorized representatives of the parties hereto. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not effect the construction and interpretation of any provision of this Agreement. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event of a conflict with the provisions of this Agreement, the provisions in any Order Form shall govern.
16 Software updates
The Software which you use may automatically download and install updates from time to time from Advertory. 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. You agree to receive such updates (and permit Advertory to deliver these to you) as part of your use of the Services.
a) Force Majeure: We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.
b) Survivability: The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.
c) Severability: The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
d) Interpretation: The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
g) Further Actions: You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
h) Amendments: No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
i) Notices: Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us.
j) No Changes in Agreement at request of Customer: Because of our huge number of Customers, we cannot, as a practical matter, change this Agreement for any one Customer or group of Customers. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition one reason we are able to offer our services at a low price is that we are able to use this Agreement to reduce our financial risks.
l) Disclaimers: We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users
18 Applicable Legislation
These general terms and conditions are governed by German legislation.
Updated 12 May 2011