Terms of Service
LAST UPDATED: 1 July 2015
This Terms of Service together with the separate Commercial Terms form the agreement between you (Publisher) and the Purchase Decision Network (PDN) (collectively the Parties).
This agreement shall start when you accept these conditions by a) any use of PDN services including our websites, web services, or SDKs or b) during registration with PDN, and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
2. PROVISION OF THE SERVICES AND THE PDN SDK
2.1 With effect from the Effective Date, PDN shall, subject to these conditions:
(a) make available and allow You to access the Services;
(b) make available to You (by download or any other method notified to You) a copy of the PDN SDK and any other PDN Materials which PDN deems appropriate.
2.2 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers and any systems that You use to access the Services or any PDN Materials and that PDN shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the PDN Materials.
2.3 You acknowledge that PDN may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the PDN Materials. PDN accepts no liability for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any PDN Materials (or any part thereof)
2.4 You acknowledge and agree that (i) nothing in this Contract guarantees that the Services will be free from interruption or errors, (ii) there will be periods when the Services are unavailable and cannot be accessed and (iii) PDN accepts no liability for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) or any PDN Materials (or any part thereof) being unavailable at any time.
2.5 You may use PDN’s technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by PDN from time to time. In connection with the Services, PDN may provide You with certain analytics reports ("Reports") which analyzes the data collected by PDN from end-users. This data concerns the characteristics and activities of end-users and facilitates management of end-user data by You.
2.6 You hereby appoint PDN and PDN hereby agrees to act as sales representative for the sale of Advertising to Advertisers in the App or Website and PDN shall have the right to incorporate, deliver and collect reporting data on all Advertising in accordance with this Agreement. PDN shall have the right to determine all Advertising pricing at its sole discretion. PDN shall have the right to use 3rd-party networks as backfill as it deems appropriate.
3. PROPRIETARY RIGHTS
3.1 You acknowledge that you have and obtain no rights in the Services or in any PDN Materials or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
3.2 PDN grants to You, with effect from the Effective Date, a limited, non-exclusive, non-transferable license for the term of the Contract to access the Services solely for Your own internal business purposes as they relate to providing your direct users advertising and other PDN facilitated services and for no other purpose whatsoever.
3.3 PDN grants to You, with effect from the Effective Date, a limited, non-exclusive, non-transferable license for the term of the Contract to use the PDN Materials solely for the purpose of enabling You to receive the benefit of the Services. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by PDN.
4. USE RESTRICTIONS
4.1 You shall not:
(a) by accessing the Services, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
(b) by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any PDN or third party systems;
(c) distribute the PDN Materials to any third party;
(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the PDN SDK or any other software to which You are given access by PDN, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
(e) assist or attempt to assist any third parties in obtaining access to the Services or the PDN Materials.
4.2 You shall be responsible and liable to PDN for all accessing of the Services and use of the PDN Materials by those of Your Personnel who access the Services and/or the PDN Materials. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5. YOUR DATA
5.1 You shall own all rights, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
5.2 PDN shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
5.3 You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to PDN to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision and operation by PDN of the Services (including the provision of the Services to third parties).
6.1 Each Party shall keep the other Party’s Confidential Information confidential.
6.2 The obligations of confidentiality in Condition 6.1 shall not prevent any disclosure of information which:
(a) is in, or has become part of, the public domain other than by a breach of the Contract;
(b) becomes available to the disclosing Party in a lawful manner from a third party;
(c) can be proven was independently developed by or for the disclosing Party;
(d) is required to be disclosed by law or because of a stock exchange requirement.
6.3 You agree that PDN may publish in marketing materials and other publicity Yourparticipation and membership in the PDN network of publishers.
7. DATA PROTECTION & COOKIES
7.1 You acknowledge and agree that PDN may, as a result of You accessing the Services, process personal data on Your behalf.
7.2 PDN warrants that any personal data received from You in connection with the Contract shall be treated in accordance with industry standard privacy practices and it shall abide by the terms of applicable data protection laws and regulations.
7.3 You warrant and represent that any personal data supplied or disclosed to PDN under or in connection with the Contract shall be controlled, collected and transferred in accordance with industry standard privacy practices. You warrant and represent that You have obtained (or will procure the obtaining of) any legally required consents to such control, collection and transfer and the processing of such personal data and/or any other tracking technology used by PDN in providing the Services and that You shall in all respects abide by the terms of all applicable data protection laws and regulations.
You will indemnify, defend and hold PDN, its parents, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any liability, claim or demand made by any third party due to or arising out of: (a) Your use of the Services or PDN Intellectual Property Rights; (b) any violation of this Contract by You including without limitation breach of representations and warranties and obligations related to confidentiality; (c) infringement by You of any third party Intellectual Property Rights or other right of any person or entity; (d) willful misconduct or gross negligence of You; (e) fraudulent or unlawful act of You.
9.1 Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes PDN’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for any liability that may not be lawfully limited or excluded.
9.2 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, PDN excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the implied warranties of satisfactory quality and fitness for a particular purpose.
9.3 Subject to Condition 9.1, PDN shall not be liable, however that liability arises, for consequential, special, incidental or indirect losses arising out of or in connection with the Contract.
9.4 Subject to Condition 9.1, PDN shall not be liable, however that liability arises, for the following losses arising out of or in connection with the Contract: loss of profits; loss of revenue; loss of business; loss of technology; loss of opportunity; loss of contracts; loss of anticipated savings; loss of goodwill; or loss of, or damage to, data, even if such loss was reasonably foreseeable or PDN had been advised or notified of the possibility of the Customer incurring such losses.
9.5 Subject to Condition 9.1, the total liability of PDN under or in connection with the Contract (however that liability arises) shall be limited to $500.
9.6 You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Contract are reasonable in view of the nature and extent of the obligations accepted by each Party under the Contract and the fact that the Services are provided without any monetary charge and that this Condition 8 shall prevail over all other provisions in the Contract.
9.7 If any limitation provision contained in these Conditions or the Contract is held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted, but if a Party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in these Conditions.
9.8 For the purposes of this Condition 9, ‘however that liability arises’ means howsoever arising, whether in contract, tort (including negligence and strict liability), breach of statutory duty, or otherwise but not including the liability governed by Condition 9.1.
10.1 Either Party may terminate this Contract at any time by written notice to the other.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
(a) all licences granted by PDN under this Contract shall immediately terminate; and
(b) the Customer shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software supplied by PDN for that purpose.
11.2 The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination.
11.3 The following Conditions shall survive the expiry or termination of the Contact:
(a) 4.2, 5.2, 6, 7, 9, 11, 12 and 13; and
(b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
12.1 Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of PDN (which may be delayed or withheld in its discretion).
12.2 Assignment and Subcontracting by PDN: PDN shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
12.3 No Waiver: The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
12.4 Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
12.5 Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
12.6 Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). PDN shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond PDN’s reasonable control.
12.7 Amendments: PDN reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by PDN, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to PDN. In the event of such termination, clause 10 above shall apply.
13. GOVERNING LAW AND JURISDICTION
13.1 These Conditions, the Contract and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the State of New York in the USA.
13.2 The Parties irrevocably agree that the courts of the New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims).
14. DEFINITIONS AND INTERPRETATION
14.1 Unless the context otherwise requires, the following definitions apply in these Conditions:
- Accept is defined in paragraph 1 above;
- Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or is, by its nature, clearly confidential;
- Conditions means these terms and conditions;
- Contract means the agreement formed between You and PDN, on the terms set out in these Conditions, when you accept;
- Data Protection Legislation means the Data Protection Directive 95/46/EC, the Privacy & Electronic Communications Directive 2002/58/EC (as amended by Directive 2009/136/EC), and all laws implementing them in any European Economic Area jurisdiction, together with any and all succeeding, amending or replacement legislation and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioural advertising including, where applicable, the guidance and codes of practice issued by any Regulator;
- Effective Date means the date on which you Accept these Conditions;
- Group Company means (in relation to a Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company;
- PDN means The Purchase Decision Network, Inc, a company incorporated and existing in accordance with the laws of the state of Delaware, with registered address at 244 5th Avenue, Suite 2381, New York, N.Y. 10001.
- PDN Materials means any materials (including software, manuals, developers notes or other materials) provided to You by PDN in relation to this Contract, including the PDN SDK.
- PDN SDK means the software development kit provided to You by PDN to allow you to generate data which will be processed as part of the Services.
- Intellectual Property Rights means trade marks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
- Party means each of PDN and You and Parties shall be construed accordingly;
- Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
- Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other aspect of Your business or affairs;
- Services means the provision of a platform to manage, traffic, serve, and track ad campaigns and other across websites and apps and across multiple campaigns and publishers.
- You means the person accessing the Services and/or using the PDN Materials; and
- Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by PDN as a result of the use of the Services by the Customer.