Terms of Service
Effective: October 1, 2020
These Terms of Service (“Agreement”) describe the terms and conditions under which you (“Client”, “you”, or “your”) may access and use Vantage’s Service.
BY CLICKING THE “REGISTER” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING VANTAGE’S SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF A CLIENT), OR YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH OTHER ENTITY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY (OR, IF SUCH ENTITY IS ACTING AS AN AGENT ON BEHALF OF ANOTHER THIRD PARTY, THEN THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL REFER TO SUCH ENTITY AND THE AUTHORIZING PARTY(IES), AS APPLICABLE). VANTAGE MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE 30 DAYS AFTER NOTIFICATION WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH VANTAGE THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 15.
“Account” means a Client account for access to the Platform.
“Ad” means any display creative advertisement that is targeted to an end user through the Service.
“Vantage Materials” means the Platform, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
“Applicable Law” means any applicable federal, provincial or foreign laws or regulations or any industry self-regulatory rules or guidelines that relate to a party’s obligations under this Agreement.
“Campaign Data” means performance and measurement data made available through the Platform that relates to Client’s Ad campaigns launched through the Service.
“Client Content” means all data relating to Client’s business (including transactions, sales and activity) which are visible through the Service to us, including logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to Vantage for use with the Services.
“Compiled Data” means data relating to the usage and performance of the Vantage Service.
“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Service that are provided by Vantage to Client.
“Feedback” means information regarding the features and performance of the Service and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Service.
“Insertion Order” means a document executed by both parties that specifies the type of Services to be provided to Client by Vantage for a particular campaign, the duration of the Services, a budget, fees, and other details.
“Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that Vantage has partnered with to provide the Services.
“Platform” means the Vantage websites, dashboard, and the tools that Client has access to through the Service in order to analyze website or visitor data, or create, launch, monitor, pause, and stop an Ad campaign.
“Service” means any Vantage offering that Client agrees to receive, subject to this Agreement and mutually agreed upon addendums, and, if applicable, in an Insertion Order.
“Service Data” means data (and each component of such data) that is collected by Vantage from end users through the use of a pixel (or other script or code) installed on Client’s website, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include any personally identifiable information provided by Client or Campaign Data. However, if Client is using a pixel (or other script or code) configured to send personally identifiable information or hashed personal identifiable information such as hashed email addresses to Vantage, this data will be Service Data.
“Technology” means the Vantage proprietary technology that allows Vantage to provide the Services, including the Vantage pixel (or other script or code), or other mutually agreed upon means.
2.THE VANTAGE SERVICE
2.1 The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.
2.2 Vantage License Grant. Vantage grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense, resale or further distribution to Client during the Term: (i) for all Services, to access and use the Platform and Materials solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; or (iii) to integrate through other mutually agreed upon means. Your right to use our Service is limited by all terms and conditions set forth in this Agreement. Vantage further grants you a non-exclusive, non-transferable license to use the Vantage web applications and mobile applications in order to receive and make use of the Service. For greater certainty, any software provided is licensed; not sold. Any third party software provided as part of the Service will be licensed to you on the terms of this Section 3 unless a separate license agreement is provided to you in which event the separate license agreement will apply to your use of the specific third party component.
2.3 Client License Grant. During the Term, Client grants Vantage a worldwide, royalty-free, transferable license to use, distribute, reproduce, adapt, publicly perform, publicly display, and exploit the Client Content in connection with the Service as contemplated by this Agreement and in promotional materials related to the Service. Vantage will seek prior authorization from Client for any press release naming Client.
2.5 Aggregated Data. Vantage Services often work by aggregating data across clients, industries and sectors without identifying individual users to each other or their customers to other Clients. For greater clarification, Client customers will never be identified to Clients that do not already have a relationship with them. You agree that Vantage may collate, modify and create aggregate information from the Client Content and from use of the Service and Vantage may reuse all general knowledge, know-how, work and technologies acquired during provision of the Service.
2.6 Requirements. Client will comply with all requirements for use of the Service communicated by Vantage to Client via Documentation, and acknowledges that absent such compliance, Vantage may be unable to provide the Service to Client. Depending on the Services Client chooses to receive, technical requirements may include: (i) integrate tags, pixels, script, or code supplied by Vantage on Client’s website; (ii) supplying appropriate Client Content necessary for Vantage to provide the Service; and/or (iii) allowing access to data collected by Client’s mobile measurement partner. If Client fails to comply with any technical requirements, Vantage may be unable to provide the Service and will have no liability to Client for such failure to provide the Service.
2.7 Support. Vantage has no obligation to provide updates or other support for the Materials or Service. In the event that Vantage provides Materials or Service updates to Client, Client will integrate the updates within 30 days.
2.8 Modifications. Vantage may make changes to the Service (including discontinuation of all or part of the Service) at any time. In the event of a material change, Vantage will provide notice to Client of such changes in accordance with this Agreement. If Client does not wish to continue to use the modified Service, Client’s sole remedy is to terminate the Agreement by providing written notice to Vantage, and Vantage will refund to Client any prepaid amounts for Services not performed as of the termination date.
2.9 Display of Ads. Vantage has absolute discretion as to where and how often Ads will be displayed within the Network. For instance, ads may be displayed next to ads of Client’s competitors, or on websites, and mobile and tablet applications that are undesirable to Client. Vantage will use commercially reasonable efforts not to display Ads on websites, or mobile or tablet applications that it determines to be pornographic, defamatory, obscene or illegal in nature without express prior permission of Client. If Client notifies Vantage in writing that Ads are being displayed in this manner, Vantage will use commercially reasonable efforts to remove such Ads. Client Content must comply with Documentation requirements or Vantage may be unable to provide the Service with respect to such Client Content.
2.10 Third Party Terms. Certain parts of the Service require the creation of a user account with third parties in order to provide their products or services on the Vantage Platform. Client will review any applicable terms before participating in any part of the Service to which such terms apply. Client agrees that Vantage may accept certain third party terms and conditions as agent on Client’s behalf where necessary for Vantage to perform Services requested by Client, for example, terms related to running campaigns on Facebook Website Custom Audiences. Links to or copies of any such terms will be provided upon request.
2.11 Free Trial. Vantage may offer a free trial for first-time clients, subject to the terms set out in the Documentation. At the conclusion of the free trial, the campaign will automatically continue as a paid campaign, unless Client stops the campaign at least 24 hours in advance of the free trial’s conclusion. Client is responsible for all costs that occur beyond the policies for free trial described in the Documentation.
Agencies entering into Services on behalf of their clients represent that they have the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement. Agency accepts responsibility for the actions of its client Accounts and liability for all expenses incurred through the provision of Services to its clients. Agency clients may request at any time that their Account be migrated to another agency or to direct Client Account with Vantage.
4.ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with Vantage is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify Vantage of any breach of security, misuse or unauthorized use of its Account or credentials. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred as a result of changes made using Client’s account will be included in Client’s regular bill or invoice.
4.2 Campaign Set Up. Client will use the Platform to manage its receipt of Services, specifically website and visitor analysis, and to set campaign budgets and other details, and to review performance. Vantage may manage a Client’s Account(s) if agreed to by both Vantage and the Client. Vantage will use commercially reasonable efforts to comply with the budget specified by Client. However, when Client increases or decreases its budget it may take up to one week for the new authorized budget to take effect. Unless expressly agreed to in writing by Vantage, Service fees will be based on Vantage’s measurements and tracking using the number of impressions, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
5.1 Prepay Accounts. For prepay accounts, Client agrees to keep valid payment method information (for example, credit card information) on file in its Account at all times and Vantage will pre-charge Client for each campaign budget amount as determined by Client on the Platform. Client authorizes Vantage to charge such amounts using the valid payment details provided by Client. If Client suspends a campaign or cancels its Account, Client may request a refund of remaining prepaid amounts greater than $25.00 in its Account after all amounts payable to Vantage have been paid, provided refund requests are made within 90 days of the suspension of the campaign or cancellation of the Account. If Client has a credit balance with Vantage for greater than 120 days, Vantage may refund any portion of a credit balance to the valid payment method on file for Client’s Account, even if Client has not requested a refund. Vantage may close Client’s Account at any time after issuing such refund.
5.2 Insertion Order Accounts. Vantage may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. Vantage reserves the right to request a prepayment from Client. Vantage will send Client a monthly invoice via email reflecting the amount owed by Client to Vantage. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. Vantage may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client will reimburse Vantage for expenses and recovery costs incurred in collecting any past due amounts, including reasonable legal fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.
5.3 Currency and Taxes. All payments to Vantage will be made in United States Dollars, unless otherwise agreed to in an IO or offered through the Platform, and are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, provincial, local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon Vantage’s income.
6.INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. Vantage Materials are the sole and exclusive property of Vantage or its third party licensors and are protected by Applicable Law. Client’s rights to the Vantage Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Client will not (i) copy or distribute any part of the Vantage Materials (including content of the Website) except to the extent expressly permitted, (ii) modify the Vantage Materials or any related proprietary notices; (iii) reverse engineer, decompile, disassemble or interfere with any Vantage Materials (except where and to the extent such prohibition is not permitted by law) or otherwise use or access the Vantage Materials for the purpose of creating a product or service that is similar to or competitive with the Vantage Materials and the Service; (iv) sublicense, rent, sell, or lease access to the Vantage Materials, or use the Vantage Materials to create any other product, service or dataset; (v) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the Vantage Materials; (vi) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Vantage Materials; (vii) use the Platform for any purpose other than using the Service for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product-interest information outside of the Services; (viii) upload, post, email, transmit or otherwise make available on the Vantage Materials or App any material that is unlawful, untrue or misleading, harmful, threatening, abusive, defamatory, obscene, invasive of another’s privacy, gives rise to civil liability, or is otherwise objectionable; (ix) impersonate any person or entity or misrepresent your affiliation with a person or entity; (x) forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted to or through the Vantage Materials or App; (xi) upload, post, email, transmit or otherwise make available any material that You do not have a right to make available under any law or under a contractual relationship; (xii) upload, post, email, transmit or otherwise make available any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party including privacy rights; (xiii) upload, post, email, transmit or otherwise use any features of the Service to make available any unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in violation of anti-spam laws and regulations; (xix) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Vantage Materials or that of any users, Clients or viewers of the Vantage Materials or that compromises a user’s privacy; (xx) interfere with or disrupt the Vantage Materials or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Vantage Materials or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (xxi) intentionally or carelessly violate any applicable local, provincial, national or international law or regulation; (xxii) collect or store personal data about end users, Clients or viewers; or (xxiii) resell the content of the Website, the use of the Vantage Materials or access to the Vantage Materials or the content of the Website. (xxiv) make or publish any representations or warranties on behalf of Vantage concerning the Service or Vantage Materials without Vantage’s prior written approval. When reproducing Vantage Materials, Client will include proprietary rights notices contained on the Vantage Materials.
6.3 Feedback. Feedback provided to Vantage may be used to develop and improve the Service, Vantage Materials and new products and services. To the maximum extent permitted by law, Client grants Vantage a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction. Accordingly, You agree that: (a) Vantage is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to Vantage, (c) Vantage (including all of its successors and assigns) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize the Feedback, and (d) You are not entitled to receive any compensation or re-imbursement of any kind from Vantage.
7.DATA RIGHTS, RESTRICTIONS AND PRIVACY
7.1 Service Data. Campaign Data, and Compiled Data. Vantage is the sole owner of the Service Data, the Campaign Data, and the Compiled Data and may use either for any purpose allowed by Applicable Law. Vantage grants Client a non-exclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.
7.2 Vantage Data Privacy Responsibilities. If and to the extent the Service Data or Campaign Data contains any personal data of individuals located in the European Economic Area, Vantage will use reasonable efforts to cooperate with Client in responding to regulatory or data subject inquiries received by Client about Vantage’s collection and processing of the Service Data or Campaign Data containing personal data from individuals located in the European Economic Area.
Network Advertising Initiative (NAI), here: http://www.networkadvertising.org/choices/
or European Interactive Digital Advertising Alliance (EDDA), here: http://youronlinechoices.eu/.
VANTAGE WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD VANTAGE HARMLESS WITH RESPECT TO, CLIENT’S VIOLATION OF ANY APPLICABLE LAW RELATING TO ITS PRIVACY PRACTICES AND/OR VANTAGE’S COLLECTION, USE OR DISCLOSURE OF SERVICE DATA AS CONTEMPLATED IN THIS AGREEMENT.
8.1 By Client. Client represents and warrants to Vantage that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Client Content and the Client websites, mobile or tablet applications do not include materials that are obscene, defamatory or contrary to any Applicable Law; (iii) the Client Content does not infringe or misappropriate the rights of any third party; (iv) the collection, transfer, use and disclosure of Service Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Client) or any statements in its own posted Privacy Notice or similar privacy statement; and (v) it will comply with all Applicable Law.
8.2 COPPA Compliance (USA). Client represents and warrants that it will not place Vantage Material on any website that is directed (in whole or in part) to children under the age of thirteen (13), and that it will not knowingly send to Vantage any information derived from children under the age of thirteen.
8.3 By Vantage. Vantage represents and warrants that (i) it has the right to enter into this Agreement, to grant all rights granted, and perform its obligations; and (ii) it will comply with all
Applicable Law. For any breach of this Section 8.3, Vantage’s sole liability and Client’s sole remedy will be re-performance of the Service by Vantage or Client’s termination rights under Section 11.
8.4 Disclaimer. THE SERVICES AND MATERIALS MADE AVAILABLE BY VANTAGE IS PROVIDED “AS IS.” SPECIFICALLY, BUT WITHOUT LIMITATION, VANTAGE DOES NOT REPRESENT, WARRANT OR OFFER ANY CONDITIONS THAT: (I) THE INFORMATION OR MATERIALS PROVIDED THROUGH THE SERVICE ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE FUNCTIONS CONTAINED ON THE VANTAGE MATERIALS OR PROVIDED BY THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, OR (IV) THIS WEBSITE, APP OR THE SERVER(S) THAT MAKES THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. VANTAGE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. VANTAGE MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH USE OF THE SERVICE. ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE VANTAGE MATERIALS IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL. VANTAGE DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE VANTAGE MATERIALS OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE VANTAGE MATERIALS OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE, AND VANTAGE SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY.
9.1 Client indemnification. Client will defend, indemnify, and hold harmless Vantage and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable legal fees) arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any Applicable Law or third-party right (including intellectual property, property, privacy or publicity rights) by Client or the Client Content.
9.2 Vantage Indemnification. Vantage will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable legal fees) arising out of any third party claim that the Vantage Materials infringe any copyright, trade secret, patent or trademark right of such third party. In no event will Vantage have any liability under this Section 9.2 arising from unauthorized modifications made to the Technology. Vantage’s indemnification obligations in this Section 9.2 will be Vantage’s sole liability and Client’s sole remedy for any claims that the Service or Materials infringe or misappropriate any intellectual property right.
9.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
10.LIMITATIONS ON LIABILITY.
10.1 Disclaimer of Damages. UNDER NO CIRCUMSTANCES SHALL VANTAGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, THAT RESULT FROM (I) YOUR USE
OF OR YOUR INABILITY TO USE THE VANTAGE SERVICES OR ANY FEATURES OR FUNCTIONALITY OF THE SAME, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS PROVIDED VIA THE VANTAGE SERVICES, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE VANTAGE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE VANTAGE SERVICES, OR (VI) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE VANTAGE MATERIALS OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE. THESE LIMITATIONS SHALL APPLY EVEN IF VANTAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL VANTAGE’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO VANTAGE UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IN THE EVENT THAT ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.4 Limitations not permitted by law. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT DOES EITHER PARTY LIMIT OR EXCLUDE ITS LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (II) FOR FRAUD, OR (III) FOR ANY OTHER LIABILITY THE LIMITATION OR EXCLUSION OR WHICH IS NOT PERMITTED BY APPLICABLE LAW.
11.TERM AND TERMINATION
11.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while you use the Services and will terminate upon written notice of cancellation of Client’s Account by Vantage or Client (“Term”), such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).
11.3 Post-Termination Obligations. Upon termination of this Agreement (i) Vantage will cease providing the Service and permitting access to the Platform to Client; (ii) Client will within thirty (30) days pay to Vantage any fees that have accrued prior to the effective date of termination; and (iii) Client will remove the Vantage pixel from its Vantage Materials and Vantage will not be liable for any damages (or any benefit to Vantage) resulting from Client’s failure to remove the pixel. Provided Client is not in breach of the Agreement, Vantage will refund Client for any amounts prepaid for Services that were not performed prior to termination. The following sections will survive expiration or termination of this Agreement: Sections 1, 6-10, 11.3, 12-13 and 15-16.
Except for the express, limited license granted by Client in respect of Client Content in section 2.3, above, each party retains all right, title and interest to its own logos and trademarks. The Vantage logos and names are trademarks of Vantage Analytics, Inc. All other trademarks and product or company names mentioned in the Service or Vantage Materials are the property of their respective owners and may not be used without the prior written permission of the. Reference to any products or services by name or otherwise does not imply endorsement by Vantage. Notwithstanding the foregoing, Vantage shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
Confidential Information includes all information disclosed by a party (the “disclosing party”) to the other party (the “receiving party”), whether of a technical, business or other nature that the receiving party knows or has reason to know is the confidential, proprietary or trade secret information of the disclosing party. Confidential Information does not include information that (i) was lawfully known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (ii) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (iii) is lawfully acquired by the receiving party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the receiving party. Each receiving party will (a) use the disclosing party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the disclosing party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 13; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the disclosing party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a receiving party is required by law to disclose the Confidential Information of the disclosing party, such receiving party must give prompt written notice (except where prohibited by law) of such requirement to the disclosing party before such disclosure and assist the disclosing party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 13 will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure.
You may assign this Agreement upon ten (10) days written notice to Vantage in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to transfer or assign is void. Vantage retains the right to assign this Agreement and delegate any or all of its obligations hereunder, at any time without notice. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
15.RESOLVING DISPUTES – FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF CANADA AND THE U.S.
15.1 Please contact Vantage first. We want to address your concerns without resorting to formal legal proceedings. Before filing a claim, you agree to try to resolve the dispute informally by contacting us first through email@example.com.
15.2 Judicial forum for disputes. You and Vantage agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or provincial courts of Ontario, Canada, subject to the mandatory arbitration provisions below. You and Vantage consent to venue and personal jurisdiction in such courts.
CANADIAN AND U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER:
15.3 Arbitration We Both Agree To Arbitrate. You and Vantage agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Arbitration Procedures. The Canadian Arbitration Association (CAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the Canadian city where you live or work, or any other location we agree to.
Arbitration Fees and Incentives. The CAA rules will govern payment of all arbitration fees. Vantage will pay all arbitration fees for all customers on a pre-pay plan. Vantage will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate. Either you or Vantage may assert claims, if they qualify, in small claims court in Toronto, Ontario. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the municipal, provincial and federal courts in Toronto, Ontario, Canada to resolve your claim.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by sending an email within 30 days of first accepting this Agreement to arbitration_optout@gotVantage.com clearly stating that you wish to opt out of arbitration with Vantage and include your first and last name, the company for which the account was created, and the email address associated with the account.
15.4 Class Action Waiver. Both parties agree to resolve any disputes, claims or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Vantage Materials, or any services provided by Vantage will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
15.5 Controlling Law. This Agreement is governed by the law of the province of Ontario, unless otherwise required by a mandatory law of any other jurisdiction.
- Some Vantage Services may be supported by advertising revenue and may display advertisements and promotions on the service. Such advertisements may be targeted to the content of information stored on the Vantage Services, queries made through Vantage Services or other information. The manner, mode and extent of advertising by Vantage on its Services are subject to change. As consideration for your use of Vantage Services, you agree that Vantage may place such advertising and that Vantage shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of the presence of such advertisers on Vantage Services or your subsequent dealings with advertisers.
- Information sent or received over the Internet is generally insecure and Vantage cannot and does not make any representation or warranty concerning security of any communication to or from the Platform or App or any representation or warranty regarding the interception by third parties of personal or other information.
- The Platform, Service, or App may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Vantage may periodically add or update the information and materials on the Platform or App or through the Service without notice.
- Amendments. This Agreement may be amended only by a written agreement agreed to by an authorized representative of each party, which agreement may be manifested in electronic form (such as through a click-through agreement).
- Independent Parties. Vantage is an independent contractor and not an agent of Client in the performance of this Agreement. This Agreement is not be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third party beneficiaries (except the indemnitees referenced in Section 9).
- Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding use of the Service and will supersede all prior agreements between the parties whether, written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement
- Force Majeure. Vantage will not be liable for any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Vantage’s reasonable control.
- Use of Third Parties. Subject to Section 13 Vantage may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf. Vantage may provide, or third parties may provide, links to other World Wide Web sites or resources. Vantage may have no control over such sites and resources and you acknowledge and agree that Vantage is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Vantage shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
- The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Vantage Analytics, Inc.
2100 Bloor Street West,
Toronto, Canada M6S 5A5