Terms & Conditions

Last Revised: March 29, 2018

PLEASE READ CAREFULLY

BY EXECUTING A SERVICE ORDER FORM, USING THE PLATFORM AND HOSTED SERVICES, OR OPENING AN ACCOUNT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

Customer understands, acknowledges and agrees that these Terms and Conditions (“Terms”), which are incorporated by reference, and made a part of, any Service Order Form, govern Customer’s use of the Platform (as defined below) and any related Services (as defined below) provided by Albert Technologies, Inc. (“Albert”), a Delaware corporation with a principal place of business located at 102 West 38th Street, 6th Floor, New York, New York 10018. By entering into to a Service Order Form or by opening an Account (as defined below), Customer represents and warrants that it has read and understood the following Terms and Customer agrees to be bound by them and to comply with all applicable laws and regulations regarding its use of the Platform and Hosted Services, and Customer acknowledges that these Terms constitute a binding and enforceable legal contract between Customer and Albert.

DEFINITIONS

  • Account” means an account in the Platform, enabling a person authorized by the Customer to access and use the Hosted Services.
  • Ad Creative” means any text, rich media, graphics, photos, video and/or audio material or combination thereof, and any other creative content, promotional in nature, that is provided to Albert by Customer for use in the Hosted Services.
  • Albert’s Tag” means the software component that may be made available by Albert to Customer pursuant to a valid Service Order Form, to be embedded in Customer’s proprietary website in order to allow tracking and analyzing of traffic and usage of such website and provision to Customer of the relevant Services.
  • Affiliate” means, with respect to Albert, any person or entity which directly or indirectly controls, is controlled by, or is under common control with Albert as of the date of these Terms, for as long as such relationship remains in effect. For purposes of this definition, “control” means the direct or indirect ownership of at least 50% of the outstanding share capital or voting securities of Albert, or the right to control the policy decisions of Albert.
  • Confidential Information” means any and all information disclosed, provided or made accessible by, or on behalf of, one Party (“Disclosing Party”) to the other Party (“Receiving Party”) and/or any of its key persons, whether in writing, orally or in any other form which is not in the public domain, or regarding past, present, or future marketing and business plans, technical, financial or other proprietary or confidential information of the Disclosing Party, or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary, as well as improvements, derivatives, upgrades, updates, and know-how related thereto. Confidential Information does not include information that: (i) is already or becomes generally known or available to the general public through no act or omission by the Receiving Party in breach of this Terms; (ii) is already known to the Receiving Party at the time of disclosure without breaching any confidentiality obligation, as such may be evidenced in the Receiving Party’s written records; (iii) is rightfully disclosed to the Receiving Party by a third party, who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (iv) is independently developed by the Receiving Party without use of, reference to, any of the Confidential Information of the Disclosing Party, as such may be evidenced in the Receiving Party’s written records.
  • Customer Data” means all data, works, materials and Customer’s list of customers with or without their contact details: (i) uploaded to, or stored on the Platform (as defined below) by the Customer and derivatives thereof; (ii) collected by Albert specifically for Customer in the scope of the Services through the Platform and transmitted by the Platform; (iii) supplied by the Customer to Albert through or pursuant to the use of the Platform, including for uploading to, transmission by or storage on the Platform; (iv) data collected via the Albert Tag with respect to traffic and usage of Customer’s website; or (v) collected by Albert from Customer through any other connection or linking approved by Customer, in the scope of the Services. For clarity, Ad Creative constitutes Customer Data.
  • Data” means collectively Customer Data, Customer Social Network Advertiser Account Data (as defined below) and End User Data.
  • Documentation” means the documentation for the Hosted Services produced by Albert and delivered or made available by Albert to the Customer;
  • End User” means any individual who views or listens to, is able to view or listen to, or interacts with, any advertisement of the Customer, delivered through the Platform and Hosted Services.
  • End User Data” shall mean data directly or indirectly collected by Albert and/or Customer during the performance of these Terms whether or not voluntarily provided by the End User, and which may include, without limitation, unique device identifiers (UDIs), cookie pools and Personal Information (as defined below) with respect to an End User.
  • Hosted Services” means the access to, and use of, the Platform, as specified in the Hosted Services Specification, which will be made available by Albert to the Customer as a software-as-a-service via the internet in accordance with these Terms.
  • Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights, including but not limited to copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs.
  • Permitted Purpose” means the use of the Platform and the Hosted Services for the sole purpose of marketing and advertising the Customer’s services, goods, or products as contemplated hereunder.
  • Personal Information” means sensitive and personally identifiable information about an End User that can be used to uniquely identify, contact, or locate an End User or can be used with other sources to uniquely identify an End User, including first name, last name, age, address, geo-location, individual financial account numbers, insurance plan numbers, precise information about economic status, health or medical conditions, personal status, chastity, government-issued identifiers (such as a Social Security number), and any personally identifiable information about a minor under the age of 13.
  • Platform” means Albert’s proprietary software as a service platform, known as “Albert”, which automatically manages, plans and executes Customer’s marketing strategies and activities, and which is administered by Albert to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed.
  • Services” means any services that Albert provides to the Customer, or has an obligation to provide to the Customer, under these Terms, including without limitation the provision of the Hosted Services, the maintenance services and the support services.
  • Term” means the duration Services provided by Albert hereunder as set forth in a Service Order Form executed pursuant to these Terms.
  • Update” means a periodic or one-time update or minor improvements to the Platform, including but not limited to required regular recurring updates and bug fixes, and which may be identified by a change in the digit to the right of the right-most decimal.
  • Upgrade” means a major software release provided by Albert involving additional and/or improved functionality to the Platform and/or otherwise identified by a change in the digit to the left of the left-most decimal point.

HOSTED SERVICES

  1. Hosted Services. Subject to Customer’s compliance with its obligations under these Terms, Albert will provide Customer access to the Hosted Services, the Platform and related Services, pursuant to a Service Order Form executed by and between the Parties, for the duration set forth in the Service Order Form. Albert shall create an Account for the Customer and shall provide to the Customer personal login details and credentials for that Account (“Login Credentials”) solely for use by Customer’s authorized system administrators and personnel, designated by Customer, to use and access the Platform and the Hosted Services on Customer’s behalf (“Authorized Personnel”). Customer and its Authorized Personnel may only access and use the Hosted Services through the Login Credentials issued to them by Albert. Customer is solely responsible for maintaining the confidentiality of the Login Credentials. Any instruction, action or activity occurring through any such Login Credentials shall be deemed to be provided and/or taken by Customer, and Customer shall be solely responsible for all activities that occur under such Login Credentials, including for any unauthorized use of such Login Credentials or any other breach of security, or any related damage or loss. Customer understands and acknowledges that the purchase of media is performed by Albert using Albert’s proprietary Platform and that the Service is performed via the Platform automatically, based on the specifications and criteria provided by the Customer. Customer shall have no claim against Albert in connection with, the choice, type and placement of media purchased using the Platform and/or the expenses and costs paid or payable by Albert for the purchase of media using the Platform in accordance with the specifications and criteria provided by the Customer.
  1. License. Subject to the terms and conditions of these Terms, Albert hereby grants to the Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free, fully revocable, limited license during the Term to access and use, and to (a) allow its Authorized Personnel to access and use, the Platform in conjunction with the Hosted Services for the Permitted Purpose, in accordance with the Documentation (the “License”); and (b) download, implement and embed the Albert Tag on Customer’s proprietary website solely as required for Customer to receive the Services pursuant to a valid Service Order Form in accordance with albert’s  instructions.
  1. License Conditions. The Hosted Services may only be used by Customer’s Authorized Personnel (which may include Customer’s authorized officers, employees, agents and subcontractors), for Permitted Purposes. Customer shall be fully liable and responsible for any unauthorized, unlawful, or other act or omission of its Authorized Personnel not within the Permitted Purposes. The Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the Service Order Form. Customer hereby acknowledges and agrees that Customer is responsible for: (i) providing accurate Ad Creative and information regarding any advertising or marketing campaign that it wishes to run through the Platform and Hosted Services; (ii) adhering to, and ensuring that all of its employees and Authorized Personnel using the Hosted Services adhere to, the Acceptable Ad Creative and Content Policy, available at https://albert.ai/content-policy/; (iii) ensuring that the Ad Creative does not cause damage or impairment to Albert, the Platform, or the Hosted Services; (iv) obtaining and at all times maintaining all rights, licenses and clearances necessary to utilize the Hosted Services and the Platform as provided under this Terms, and to provide Albert the Ad Creative, to the extent applicable; (v) posting on Customer’s website its privacy policies and adhering to such privacy policies, which abide by all applicable laws and comply with the terms hereof; and (vi) any acts or omissions of any of Customer’s employees, agents or subcontractors, and ensuring that such agents and subcontractors comply with the these Terms.
  1. Access. During the Term, Albert shall use commercially reasonable efforts to ensure the availability of the Hosted Services, except that Albert shall not be liable for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond Albert’s reasonable control, including without limitation, (i) force majeure event; (ii) Internet service provider, webhosting, cloud computing platform, or public telecommunications network failures or delays, or denial of service attacks; (iii) a fault or failure of the Customer’s computer systems or networks; or (iv) any breach by the Customer of these Terms. Albert shall provide the Customer with technical support during the Term, as specified in the Service Order Form, at no additional cost.

FEES AND PAYMENT TERMS

  1. Fees. In consideration for the grant of the License and the provision of the Services, the Customer shall pay Albert the amounts set forth on each Service Order Form (the “Fees”) in accordance with the payment terms stated in the Service Order Form. Late payments shall accrue interest at a rate of one and one half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. All Fees are stated and payable in US Dollars, and are exclusive of any taxes, customs or charges including VAT. Customer shall pay (or reimburse Albert as the case may be) for all taxes related to or arising out of these Terms, including any sales, use, excise, gross receipts, property, privilege, value-added, or other federal, state or local taxes or tariffs (including any interest or penalties thereto) now in force or enacted in the future, except for those taxes collected from Albert and based on Albert’s income. Customer may not withhold or set off any Fees due to Albert hereunder. Albert may suspend the provision of the Services or any part thereof, if any Fees due to be paid by the Customer to Albert under these Terms are overdue, and Albert has given the Customer at least five (5) days written notice.

DATA

  1. Customer Data. Customer shall be required to upload Customer Data onto the Platform in order for Albert to provide the Services contemplated hereunder and under a Service Order. Customer shall retain ownership of all Customer Data it provided or made accessible to Albert in the scope of the Services, and Customer hereby grants Albert a non-exclusive, sub-licensable (solely to Albert’s hosting, connectivity, telecommunications, customer relations management, and other third party service providers to the extent applicable), worldwide, royalty-free license, during the Term, to use, copy, reproduce, transfer, store, process, publish, distribute and edit such Customer Data: (i) solely as necessary to provide the Services and to allow Albert to perform under, and in accordance with these Terms and any applicable Service Order Form; (ii) to compile aggregated statistics, reports and research for internal or marketing use and for development and/or evaluation of existing and/or additional or modified services, features and functionality with respect to the Hosted Service and/or the Platform; (iii) to disclose any Customer Data if required by law or valid order of a competent court in any applicable jurisdiction, or other governmental authority. Albert shall treat the Customer Data as Customer’s Confidential Information (as such term is defined herein) pursuant to these Terms.
  1. End User Data. In the event End User Data is provided to Albert and/or Customer, or is used to provide the Services, Albert shall not have any right, title or interest in or to any such End User Data except as required hereunder for Albert to provide the Services. Albert shall not use the Platform, the Albert Tag or the Hosted Services to collect, store or use any information that can be used on its own or with other information to identify, contact, or locate an End User, except to the extent necessary for providing the Services to Customer.
  1. Social Network Advertiser Data. To the extent Customer has an advertiser account with a social network for advertising, including without limitation, Google, Facebook, Instagram, Twitter, and YouTube (“Customer Social Network Advertiser Account”), Customer hereby grants Albert a non-exclusive, sub-licensable (solely to Albert hosting, connectivity, telecommunications and other third party service providers), worldwide, royalty-free license, during the Term, to use the Customer Social Network Advertiser Account Data solely as necessary to provide the Services to Customer and to allow Albert to perform its obligations to Customer under, and in accordance with, these Terms. Customer shall provide Albert with the login credentials of the Customer Social Network Advertiser Account. In the event Customer does not maintain a Customer Social Network Advertiser Account and requests Albert to open one on Customer’s behalf, Albert shall maintain the login credentials and provide a copy of the same to Customer.
  1. Data Protection and Privacy. Each Party represents and warrants that it will comply with all applicable laws, rules, regulations, directives and guidelines regarding the collection, use and disclosure of data collected from or about end users or specific devices which apply to the services utilized hereunder (collectively, the “Rules”).  The term “Rules” shall include, without limitation, (a) all United States Federal Trade Commission rules and guidelines regarding the collection, use and disclosure of data from or about end users and/or specific devices; (b) all United States federal and state laws regarding data collection and data privacy; (c) the Self-Regulatory Principles and guidance of the Digital Advertising Alliance (“DAA”), the Network Advertising Initiative (“NAI”) Code of Conduct and guidance, and, as each set of principles and guidance may be amended or supplemented, or as replaced or superseded, from time to time by the DAA, NAI,  or their respective successor entity; (d) best practice guidance provided to Albert by Customer, as amended from time to time; and (e) if applicable, the Rules of any other jurisdiction, including European Union Directives 95/46/EC and GDPR, rules, regulations and/or directives promulgated by a pertinent DPA, and all amendments and updates to them or  regulations as replaced or superseded from time to time.Commencing May 25, 2018, Albert shall, to the extent legally permitted, promptly notify Customer if Albert receives a request from a Data Subject (as defined in the GDPR) to exercise the Data Subject’s right of access, right to rectification, restriction of processing, erasure (“right to be forgotten”), data portability, object to the processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Taking into account the nature of the processing, Albert shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to a Data Subject Request under data protection laws, directives, and regulations. In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Data Subject Request, Albert shall upon Customer’s request provide commercially reasonable efforts to assist Customer in responding to such Data Subject Request, to the extent Albert is legally permitted to do so and the response to such Data Subject Request is required under data protection laws, directives and regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Albert’s provision of such assistance.Customer shall be responsible for providing appropriate information and obtaining any required consent from End Users or its customers, including notice and consent allowing it to own, control, transfer and use as contemplated hereunder, all Personal Information of End Users and Customer’s customers including all consents required by social networks such as Facebook, Twitter, Instagram etc. for the collection, processing, tracking and tagging of End Users by Albert on behalf of Customer as required for the provision of Services hereunder. Customer will collect, use, transfer and otherwise process any Personal Information collected by or through the Platform and the Hosted Services in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including but not limited to the data protection laws and employment laws. Customer shall provide such information and obtain such consent to any processing of Personal Information by and through the Platform and Hosted Services in accordance with any and all applicable laws. Albert shall process Personal Information provided by Customer in accordance with this Agreement, and applicable Data Protection Laws and Regulations. Albert shall implement and maintain appropriate organizational, administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Personal Information provided by Customer and to protect against unauthorized access to or alteration, disclosure, destruction or loss of such Personal Information, Albert shall not modify Personal Information provided by Customer except as required in the scope of the Services, Albert shall not disclose Personal Information provided by Customer except as compelled by law in accordance with the “Confidentiality section below or as expressly permitted in writing by Customer, and Albert shall ensure that the its employees providing the Services and having access to Personal Information provided by Customer are under strict confidentiality provisions and are aware of and are suitably trained in any such technical, organizational and security measures.Customer shall ensure that each of its websites and/or mobile applications contains a privacy policy that: (a) discloses the usage of third-party technology and the data collection and usage resulting from the Platform, the Albert Tag and the Hosted Services; (b) contains a conspicuous live hyperlink to an opt-out website that provides the End User the ability to opt out of interest-based advertising and related collection of information through the Platform, the Albert Tag and Hosted Services; and (c) complies with all applicable privacy laws, rules and regulation. To the extent required by applicable law, rule or regulation, Customer shall provide Albert, with respect to the provision of the Hosted Services, a copy of Customer’s privacy policy consistent with the foregoing requirements.The Parties agree that with respect to all Data, it shall be the responsibility of the Customer to devise, safeguard, transfer, share and use the Data in compliance with applicable laws, directives, and regulations, including without limitation, any privacy and data protection laws and regulation in connection with the communication of commercial advertisements (including the CAN-SPAM Act, 2003 and any applicable similar laws and regulation).Customer represents and warrants that it accepts full and sole responsibility for developing and implementing a satisfactory full data backup and a disaster recovery capability facilitating complete data recovery including restoration or reconstruction of all its lost or altered files data or programs, and the security of all its Confidential Information, Data and all Personal Information

Intellectual Property

  1. Albert’s Intellectual Property. Albert maintains and owns all Intellectual Property Rights in and to: (i) the Platform; (ii) the Hosted Services; (iii) the Albert Tag; (iv) the Services; and (iv) the Documentation; and (v) any Updates and Upgrades. Customer understands and acknowledges that, other than the limited right to use the Platform and Hosted Services, as provided hereunder, these Terms do not convey any right, title or interest in and to the Platform, the Hosted Services, or any other Intellectual Property Right of Albert. Any updates, upgrades, improvements, modifications, adaptations, derivatives or enhancements made to the Platform or Hosted Services, any of Albert’s Intellectual Property, or to any part thereof, or other work which includes, contains, substitutes, emulates, exposes the functionalities, or incorporates the Platform or Hosted Services, or any part thereof, made by the Customer, Albert or jointly by the Customer and Albert, shall be solely owned by Albert.

CONFIDENTIALITY

  1. Confidentiality. Neither Party shall disclose any Confidential Information to any third party other than to its Personnel, employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed, under an executed agreement, to keep such information confidential in the same or a substantially similar manner as provided for in these Terms. Neither Party will use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of these Terms. Each Party will take reasonable security precautions to protect and safeguard the Confidential Information of the Disclosing Party against any unauthorized use, disclosure, transfer or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. Either Party shall notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breach of these Terms. Nothing in this Agreement shall prevent a Receiving Party from disclosing Confidential Information it received hereunder pursuant to a binding order of a government agency or a court, provided that the Receiving Party (a) notifies the Disclosing Party of such release or disclosure with as much notice as reasonably possible so that such Disclosing Party may seek a protective order or other appropriate remedy; and (b) uses reasonable efforts to limit such release or disclosure only to the extent required. The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and agree that the non-breaching Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The provisions of this section shall continue in force for a period of five (5) years following the termination or expiration of these Terms.

REPRESENTATIONS AND WARRANTIES

  1. Each Party hereby represents, warrants, and undertakes to the other Party that: (i) such Party has the required power and authority to enter into these Terms; (ii) the execution of these Terms and performance of its obligations thereunder do not and will not, to the best of its knowledge, violate any other agreement to which it is a party; (iii) there is no other restriction, limitation, contractual or statutory obligation, including regarding the creation and marketing of online materials and Ad Creatives, which prevents a Party from fulfilling its obligations under these Terms; (iv) these Terms constitutes a legal, valid and binding obligation when signed by both Parties.(a) Albert’s Representations and Warranties.  Albert hereby represents and warrants to the Customer that: (i) it will have all necessary rights, licenses, know-how, expertise and experience to provide the Services under these Terms; (ii) it exclusively owns or is the licensee of the Platform, the Albert Tag and the Intellectual Property Rights therein and has the full legal rights, licenses and authority to grant the License to Customer, as provided herein; (iii) the Platform and Hosted Services will conform in all material respects with the Hosted Services Documentation; (iv) the Platform will incorporate security features reflecting the requirements of good industry practice; and (v) the Hosted Services and the Platform, when used by the Customer in accordance with these Terms, shall comply with all applicable laws and regulations.(b) Customer’s Representations and Warranties. Customer hereby represents, warrants to Albert and undertakes that: (i) it shall use the Hosted Services and the Platform solely for the Permitted Purposes as contemplated by these Terms, and shall not interfere with the integrity or performance of the Hosted Services and the Platform or the Data contained therein or attempt to gain unauthorized access to the Platform; (ii) it shall make every effort to uphold the highest ethical and commercial standards, and comply with all applicable laws and regulations applicable to its business and/or the use of the Hosted Service and the Platform, including data protection, anti-SPAM, and privacy laws and regulations; (iii) none of the Ad Creatives and none of Customer’s websites to which an End User is directed following a click on any advertisement will contain any obscene, defamatory, infringing, illegal, deceptive, pornographic, gambling–related or hateful content; (iv) the Ad Creatives will be free of any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry; (v) it shall comply with the Child Online Privacy Protection Act (“COPPA”) and no Ad Creative will be used for any website or online service directed to children under the age of 13 nor shall any Personal Information about or relating to an individual under the age of 13 be transmitted to Albert; (vi) it shall deliver the Ad Creatives in accordance with the Acceptable Ad Creative and Content Policy found at www.albert.ai/content-policy; (vii) it is solely responsible for the Data, the Customer’s website and/or the Ad Creatives and the consequences of using, advertising, publishing, promoting, and/or distributing them via the Hosted Service and on the Platform, except if such consequences are a direct result of a wrongful or intentional act or omission by Albert; (viii) the Ad Creatives and/or Data is (and will continue to be throughout the Term) true, accurate, complete, and non-infringing upon any third party rights, including Intellectual Property Rights and privacy rights; (ix) it has obtained, and be deemed to have hereby granted to Albert, all rights necessary to authorize Albert to store, audit, optimize and serve Ad Creatives and otherwise provide the Hosted Services and the Platform to Customer hereunder; and (x) it shall not knowingly or purposely use, merge or otherwise make available to the Platform any Personal Information provided by an End User or other third party in a manner which violates applicable law, or any legal right of the End User or third party regarding the use and/or disclosure of their Personal Information conferred by the then-current privacy policy on either party’s websites.

WARRANTY DISCLAIMER

  1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALBERT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE ABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE HOSTED SERVICES, THE PLATFORM AND THE ALBERT TAG OR ANY PART THEREOF. THE SERVICES, THE PLATFORM, AND THE ALBERT TAG, (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, MATERIALS, REPORTS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, SECURITY OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY ALBERT AND/OR CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PLATFORM AND THE HOSTED SERVICES. ALBERT DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER OR ANY THIRD PARTY SHALL OBTAIN FROM THE PLATFORM AND/OR THE HOSTED SERVICE. ALBERT DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED ON THE PLATFORM, INCLUDING ANY ADVERTISEMENTS AND/OR DATA. EXCEPT AS EXPRESSLY STATED OTHERWISE UNDER THESE TERMS, ALBERT DOES NOT AND CANNOT WARRANT THAT THE OPERATION OF THE HOSTED SERVICE, THE ALBERT TAG AND/OR THE PLATFORM IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. ALBERT MAY, AT ITS SOLE DISCRETION, CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE HOSTED SERVICE, THE PLATFORM AND THE ALBERT TAG, AT ANY TIME WITHOUT ANY NOTICE TO CUSTOMER.

LIMITATION OF LIABILITY

  1. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, NEITHER PARTY, NOR ITS DIRECTOR’S, OFFICERS, SHAREHOLDERS, AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES, SHALL BE LIABLE TO THE OTHER PARTY, INCLUDING IN CONNECTION WITH ANY CLAIMS OF ANY END USER OR ANY OTHER THIRD PARTY FOR ANY LOSS, COST, DAMAGES OR EXPENSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION,  INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THESE TERMS, AND/OR THE PLATFORM AND HOSTED SERVICES (OR ANY PART THEREOF), REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS AND/OR PERFORMANCE UNDER THESE TERMS, THE PLATFORM (OR ANY PART THEREOF), SHALL EXCEED THE fees PAST DUE OR PAYABLE TO ALBERT BY cUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT.

INDEMNIFICATION

  1. Indemnification. Customer shall defend, indemnify and hold harmless Albert and its officers, directors, shareholder, employees, affiliates and agents (the “Albert Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claim that: (i) the Data, Ad Creatives, Customer’s website, Customer’s use of the Service, or other content violates any third party rights, including without limitation, infringement or violation of the Intellectual Property Rights or privacy rights of such third party; (ii) the Data, Ad Creatives or other content are obscene, defamatory, illegal, unethical, or promote illegal behavior; and/or (iii) that Customer failed to obtain any necessary permit, license or consent in connection with these Terms; and/or (iv) stems from Customer’s violation or alleged violation of any of its representations, warranties, and/or obligations under these Terms. Albert shall defend, indemnify and hold harmless Customer and its officers, directors, shareholder, employees, affiliates and agents (the “Customer Indemnitee”) from and against all costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from any third-party claim that the Hosted Services, the Platform and/or the Albert Tag, violate any third party Intellectual Property Rights.As a condition to the defense and indemnity set forth above, the Albert Indemnitee or the Customer Indemnitee, as applicable (the “Indemnified Party”) shall give the other Party (“Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof (collectively, “Claim”), at its own expense, provided that (a) no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of the Indemnified Party may be agreed to by the Indemnifying Party without the Indemnified Party’s prior written consent; and (b) the Indemnifying Party shall keep the Indemnified Party informed of the status and progress of such Claim, the defense thereof and/or settlement negotiations with respect thereto. The Indemnified Party shall give the Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defense.

TERM AND TERMINATION

  1. Term. These Terms shall govern any valid fully executed Service Order Form and shall continue for the period set forth under the Service Order Form executed pursuant hereto, unless terminated earlier as provided in these Terms or the Service Order Form. If either Party materially breaches these Terms or a valid Service Order Form, the non-breaching Party may terminate these Terms and/or any such Service Order Form, upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within thirty (30) days following its receipt of such notice. Albert may terminate these Terms and any Service Order Form immediately in its sole discretion upon Customer’s breach of the “Fees & Payment”, “Data”, and “Intellectual Property and Confidentiality” sections of these Terms. Either Party may terminate these Terms and any Service Order Form, in its entirety if the other Party (a) becomes insolvent or is unable to meet its debts as they mature, (b) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors, (c) applies for, consents to or acquiesces in the appointment of any receiver or trustee for all or a substantial part of its property, or if any such receiver or trustee is appointed and not discharged within thirty (30) days after the date of such appointment.Upon expiration or termination of these Terms and/or any Service Order Form for any reason, (i) all rights and licenses including the License granted herein, and any Service Order Form executed pursuant hereof, shall terminate immediately; (ii) each Party shall promptly return to the other Party, or destroy and certify in writing to the other Party of the destruction of all Confidential Information; (iii) Customer shall immediately cease to use the Hosted Services and shall purge from its systems and websites any traces of the Platform or of the Albert Tag; (iv) Customer shall remit, in full, all payments due to Albert according to these Terms and all Service Order Forms pursuant thereto (and in the event of termination by Albert, only such payments accruing prior to the date thereof), and following such final payment, neither Party will be entitled to receive any payment from the other Party. The following provisions shall survive the expiration or termination of these Terms: “Definitions”, “Data”, “Intellectual Property”, “Confidentiality”, “Disclaimer of Warranties”, “Limitation of Liability”, “Indemnification”, “Term and Termination” and “Miscellaneous Provisions”, and all other performance obligations of both Parties under this Terms shall cease.

MISCELLANEOUS PROVISIONS

17.1 Headings.  The section headings used in these Terms are intended for reference purposes only and shall not affect the interpretation of this Agreement.
17.2 Waiver.  No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under any Service Order or these Terms shall operate as a waiver thereof.
17.3 Remedies Not Exclusive.  Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
17.4 Severability.  If any provision of a Service Order or these Terms is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision.  The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of a Service Order or these Terms, and that provision, and a Service Order or these Terms, generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in a Service Order or these Terms.  The fact that any provision of a Service Order or these Terms is held to be illegal, invalid or unenforceable in a particular jurisdiction shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.
17.5 Non-Exclusivity.   A Service Order or these Terms are non-exclusive.
17.6 No Strict Construction.  If an ambiguity or question arises with respect to any provision of a Service Order or these Terms, the Service Order or these Terms will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
17.7 Assignment.  Neither a Service Order, nor these Terms, or any rights or licenses granted thereunder may be assigned, delegated or subcontracted by Customer without the prior written consent of Albert. Any attempt to assign any rights, duties or obligations which arise under a Service Order or these Terms without such consent shall be null and void ab initio. This Agreement shall be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.  Notwithstanding the foregoing, a Party may assign its rights, duties or obligations under this Agreement without the consent of the other Party in the event of a merger, acquisition or other change in control of its ownership.
17.8 Independent Contractor Relationship. The Parties are independent contractors and a Service Order, or these Terms, do not create an agency, partnership, or joint venture relationship between the Parties.  Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
17.9 Force Majeure.  Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event.  “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.
17.10 Notices.  All notices and other communications required or permitted to be given to a Party pursuant to a Service Order or these Terms shall be in writing, and shall be deemed duly given (i) on the date delivered if personally delivered; or (ii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth on the first page of this Agreement; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder. A copy of any notice to Albert shall be sent to Rosenberg Fortuna & Laitman, LLP, attention: Arthur S. Laitman, Esq., 666 Old Country Road, Suite 810, Garden City, New York, 11530, facsimile: (516) 228-6672.
17.11 Governing Law/Jurisdiction/Venue/Legal Fees.  These Terms, as well as any Service Order, and all matters arising directly or indirectly therefrom, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of New York.  For all such matters, each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing Party in any litigation shall be entitled to recovery of its reasonably attorneys’ fees from the other Party in addition to any other award of damages from the court.
17.12 Entire Agreement.  These Terms, as well as any Service Order, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof.  No modification of a Service Order or these Terms shall be effective unless it is in writing and signed by an authorized representative of each Party.