Nativly Group Ltd (“ActionAds”) provides the https://www.actionads.com/ website (the “Website”) and various related services (the “Services”) and additionally agreed services (the “Additional Services”) to you, the user, subject to your compliance with all the terms, conditions, and notices contained or referenced in these Terms of Service and in the applicable Order Form, as well as any other written agreement between ActionAds and you (collectively the “Agreement”).
In addition, when using particular services or materials on this Website, users shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions in addition to those in the Agreement. All such guidelines or rules are hereby incorporated by reference into the Agreement. In case of any discrepancy within the meaning of the documents including into the Agreement, the provisions of these Terms of Service shall prevail.
ActionAds expressly reserves the right to change any provision of the Agreement, including, but not limited to any provision of these Terms of Service from time to time without notice to you. You acknowledge and agree that it is your responsibility to review the Website and the Agreement, including, but not limited to these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of Services after such modifications will constitute acknowledgement of the modifications made by ActionAds and agreement to abide and be bound by such modifications.
You agree to provide accurate, current and complete information about you or any entity on whose behalf you will access the Service at the time of registration in order to access the Service. You are solely responsible for maintaining the confidentiality of your account in the Website (the “User Account”) and password, and you are responsible for all activities that occur under your User Account by you or any user, expressly authorized by ActionAds to use the User Account on your behalf (the “Authorized User”).
A) Grant of License to ActionAds Platform. ActionAds grants you a worldwide, non-exclusive, non-transferable right and license during the Term to use the Services through the proprietary technology of ActionAds (the “Platform”). Except as expressly licensed herein, ActionAds retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, patent and other intellectual property rights) the Platform, and any and all upgrades, enhancements, modifications or derivative works of the Platform.
B) Restrictions to your Use of the Platform. You will not, and will not allow any Authorized Used, end user or third party under its direction and control to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, technology or algorithms of the Platform by any means whatsoever, or replicate the functionality of the Platform for any purpose; (ii) license, share, lend, host, or otherwise transfer in any manner the Platform to or for the benefit of any third party; or, (iii) disclose any performance information or analysis from any source relating to the Platform. You will not authorize or permit any unaffiliated third party, including but not limited to direct competitors to ActionAds, to use the Platform without the prior written consent of ActionAds, which may be withheld at its discretion. All rights not expressly granted by ActionAds hereunder are reserved by ActionAds.
A) Subscription Fees. The amount due by you to ActionAds in consideration for ActionAds providing the Services to you (the “Fees”) shall be specified in the subscription services order form available (the “Order Form”) available online in the User Account. The Fees:
1You may automatically change the subscription level at any time upon providing additional payment necessary to switch the levels. Such additional payment shall be specified in the Order Form. For avoidance of doubt, if you will choose to decrease the subscription level, you shall not be eligible for any refund.
2ActionAds agrees to pass through to you all API costs incurred by you and billed to ActionAds at no additional mark up.
Additional details for each subscription shall be specified in the relevant Order Form.
ActionAds may suspend or pause your User Account or access to the Service at its sole discretion with or without notice if it shall suspect that your creditworthiness is under the question or that you have or may violate any provision of this Agreement or any applicable law.
ActionAds shall review all billing inquiries, including refund and payment cancellation requests, on a case-by-case basis and reserves the right to approve or deny any request in its sole discretion.
When you will reach the limit of your monthly subscription you will be notified about such fact and any your activity and your access to the Services and the Additional Services shall be automatically paused: (i) until the next month; or (ii) until you will increase your subscription level (whichever is earlier).
B) Discounts. ActionAds at its sole and absolute discretion and on a case-to-case basis may provide you a discount to the Fees for the Services or for the Additional Services. Nothing contained herein shall be construed as an obligation of ActionAds to provide such discount.
A) Term. This Agreement and your subscription to the Services will commence and will be effective as set forth in the relevant Order form unless terminated earlier by either party to this Agreement (the “Term”). You may renew the Term and change the subscription level to the Services at any time.
B) Termination. This Agreement may be terminated at any time by either party’s discretion with notice to another party.
C) Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, you and your Authorized Users’ right to access and use the Services shall immediately terminate, you and your Authorized Users shall immediately cease all use of the Services, and you shall return to ActionAds and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to ActionAds. Upon expiration or termination of this Agreement, ActionAds shall have no obligation to deliver any copy of the Client Data to you, and may delete such Client User Data at any time.
A) Client User Data. In order for ActionAds to provide the Services and Additional Services, ActionAds may collect information about you and about visitors to your website(s) (“Client User Data”). All Client User Data is your sole the property and ActionAds has no ownership rights in any Client User Data. Client User Data includes, without limitation, all sales and marketing information provided by you to ActionAds, and all individually identifiable information about visitors to your website(s), including statistical and demographic information. ActionAds shall adopt adequate archival procedures to store the Client User Data (defined below). In the event of any loss or corruption of Client User Data, ActionAds shall use its commercially reasonable efforts to restore the lost or corrupted Client User Data from the latest backup of such Client User Data maintained by ActionAds in accordance with its archival procedures. ActionAds shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Client User Data caused by any third party. EFFORTS OF ACTIONADS TO RESTORE LOST OR CORRUPTED CLIENT USER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE THE SOLE LIABILITY OF ACTIONADS AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CLIENT USER DATA. ActionAds reserves the right to establish or modify its general practices and limits relating to storage of Client User Data.
B) Grant of License to ActionAds of Client User Data. You grant to ActionAds a limited, royalty-free license to use, reproduce and modify Client User Data solely as necessary for ActionAds to provide Services for you and to perform its other obligations to you hereunder. Your license to ActionAds includes the right to collect Client User Data, either directly from you or through other means such as the use of redirects and pixels. ActionAds will not disclose Client User Data to any third party unless such disclosure is (i) approved by you, or (ii) is made by ActionAds in response to legal process, and provided that ActionAds has given you (unless prohibited by the law) the reasonable notice of, and a reasonable opportunity to contest, such legal process.
C) Grant of License to ActionAds of Aggregated Anonymous Data. So that ActionAds may improve and promote its offerings, you grant ActionAds a perpetual, unlimited, royalty-free license to aggregate Client User Data with other data, (and/or segregate portions of the Client User Data) so that it is non-personally identifiable with respect to both you and visitors to your website(s) (“Aggregated Anonymous Data”). You agree that ActionAds may create Aggregated Anonymous Data, and may use, reproduce, distribute, execute, display and commercially use the Aggregated Anonymous Data at its discretion. ActionAds may disclose Aggregated Anonymous Data to third parties, publish it through its website(s), blog, or by other means, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data. You shall have no interest in such Aggregated Anonymous Data or any use thereof by ActionAds. This license shall survive any termination, expiration or cessation of this Agreement for any reason.
A) Internet Access and Communication. To use the Service, you must have access to the Internet, either directly or through devices that access web-based content. You must provide all equipment necessary to make (and maintain) such connection to the Internet. You are solely responsible for your equipment, connection, and all other networking and storage devices which you use to connect to the Service. You shall be solely responsible for all costs, fees, expenses, and taxes of any kind related to the foregoing. ActionAds shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. You agree to provide ActionAds with your e-mail address, to promptly notify ActionAds of any changes to your e-mail address, and to accept e-mail or other electronic communications from ActionAds that are necessary to communicate with you about the Service. ActionAds may provide any and all notices, statements and other communications to you through e-mail, posting a notice in your User Account, or posting elsewhere on the Platform or in the Service, and you expressly release and shall hold ActionAds harmless from any responsibility to communicate with you other than through e-mail or electronic means of the choosing of ActionAds. You agree that as long as the ActionAds provides conspicuous notice in your User Account or elsewhere on the Platform or in the Service, ActionAds shall have no liability for failure to notify you via e-mail, including for improper address, filtration, bounce-back, erroneous transmission or other e-mail or technical malfunction.
B) Third Party Software. You agree to use software produced by third parties, including but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by ActionAds. Until notified otherwise by ActionAds, you agree to use software that supports the Secure Socket Layer protocol or other protocols accepted by ActionAds and to follow the logon procedures for that service. You acknowledge that the Platform is designed to allow you to transact modifications of advertising campaigns through other third party systems, and that your access to the Service requires that your software will satisfy the security requirements of each such third party system. You acknowledge that ActionAds is not responsible for notifying you of any upgrades, fixes, enhancements or other modifications to any such third party software, or for any compromise of data transmitted across computer networks not owned or operated in whole by ActionAds.
C) Your Responsibility. You are solely responsible for all activity occurring under your User Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You are solely responsible for maintaining the confidentiality of your User Account and password and for restricting access to your computer(s), and you are responsible for all activities that occur under your User Account by you or any Authorized User of your User Account, including but not limited to issuing Order Forms. You shall promptly notify ActionAds of any suspected or alleged violation of this Agreement including any unauthorized use of any password or User Account or any other known or suspected breach of security. You shall cooperate with ActionAds with respect to: (a) investigation by ActionAds of any suspected or alleged violation of this Agreement and (b) any action by ActionAds to enforce this Agreement. ActionAds may suspend or terminate any User Account upon notice to you in the event that ActionAds reasonably determines that such User Account has been involved in a violation of this Agreement. You remain liable for the losses incurred by ActionAds or others due to any unauthorized use of your User Account or any User Account created by you, including but not limited to any charges associated with any your account, including, but not limited to the account in Facebook, Bing, Google AdWords (the “Advertising Account”) or the Order Form issued by you. You agree to provide ActionAds with complete and accurate billing and contact information on the Order Form.
If you are a paying to ActionAds for Services, you grant ActionAds a non-exclusive, perpetual, royalty free fully paid up limited right and license to use your name, trademarks, service marks and logos in the production of marketing materials promoting ActionAds and the Service, provided that such use is in accordance with your trademark and intellectual property use guidelines. All goodwill from the use of such properties shall inure to your benefit. If you disagree on such usage – please notify us accordingly.
You understand that the processing and transmission of your transactions, communications and other instructions (collectively “Data Exchanges”) are fundamentally necessary to your use of the Service and consent to ActionAds’ interception, storage and access to such Data Exchanges. You also understand that such Data Exchanges will involve communication over the Internet and over various networks which are not owned or controlled in whole by ActionAds and that changes to your Data Exchanges may occur in order to conform and adapt such Data Exchange data to the technical requirements of connecting networks or devices. You further understand that Data Exchanges may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that ActionAds is not responsible for any Data Exchange which is lost, altered, intercepted or stored without authorization during the movement of any data across networks not owned or controlled and operated by ActionAds. You acknowledge that functionality may be available in Your Advertising Account which is not available through the Service. You agree that you remain responsible for checking updating or otherwise transacting through your Advertising Account to ensure Data Exchange accuracy.
ActionAds’s Service or Website may provide links to third party sites or resources. ActionAds has no control over such third party sites or resources and you acknowledge and agree that ActionAds is not responsible for the availability of such external resources and does not endorse and is not liable for any content, advertising, products or other materials available from or on such sites or resources. Any transactions or activity between you and any third party site or resource is solely between you and the applicable third party, and any terms, conditions, warranties or representations associated with such activity shall be between you and them. You recognize that certain third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with ActionAds. If you are referred to a third party site as an affiliate of ActionAds, then you agree to permit such third party site to share details of your transactions with them with ActionAds, and you waive any objection to any referral fee earned by ActionAds.
Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out its provisions; (b) it is duly authorized to execute and deliver the Agreement and to perform its obligations; and, (c) the Agreement is valid and legally binding upon it and the execution, delivery and performance thereof by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it.
You also represent and warrant that (i) the content or services provided by you and marketed by ActionAds will not contain any information or materials that is unlawful, hateful, threatening, obscene, defamatory or offensive, and (ii) the content or services provided by you and marketed by ActionAds through the Services or Additional Services will not violate any law, regulation or rights of any third party including, without limitation, intellectual property rights or rights of publicity or privacy.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ADDITIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY ESTIMATES OF ANY PERFORMANCE IMPROVEMENT IN YOUR ADVERTISING CAMPAIGN. ACTIONADS DOES NOT WARRANT THE RESULTS OF THE SERVICES OR ADDITIONAL SERVICES, THAT THE SERVICES OR ADDITIONAL SERVICES WILL MEET YOUR BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE), THAT THE PROVISION OF THE SERVICES OR ADDITIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ANY ERROR IN THE SERVICES OR ADDITIONAL SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE THAT THE SERVICES OR ADDITIONAL SERVICES MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FROM TIME TO TIME.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ACTIONADS SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR (I) ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION OR BUSINESS, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. EXCEPT FOR A BREACH BY ACTIONADS OF CONFIDENTIALITY CONTAINED HEREIN, ACTIONADS SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT IN AGGREGATE PAID TO ACTIONADS HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
You (an “Indemnitor”) hereby agrees to indemnify, defend and hold ActionAds, and its respective officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys (the “Indemnitee”) harmless from and against any and all third party claims or proceedings, including all liabilities, costs and expenses (including without limitation, reasonable attorneys’ fees and related costs and expenses, whether or not suit is filed or proceedings instituted thereon) related thereto, arising in connection with any breach or default by the Indemnitor of its representations and warranties hereunder. Indemnitor’s obligations of indemnification under this paragraph shall be conditioned upon the Indemnitee (i) providing the Indemnitor prompt written notice of any such claim, (ii) cooperating with the Indemnitor, at Indemnitor’s expense, in connection with the defense and/or settlement of the claims, and (iii) permitting the Indemnitor to control the investigation, defense, settlement and appeal of the claim, provided that any settlement that involves liability or an admission on the part of the Indemnitee shall be first approved in writing by such Indemnitee. The Indemnitee may, at its expense, participate in the defense and settlement of the claim.
A) Definition and Exclusions. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
B) Use and Nondisclosure. During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice (unless expressly prohibited of doing so under the applicable law) of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
A) Entire Agreement. This Agreement, including the applicable Order Forms entered into hereunder, contains the entire understanding and agreement of the parties, incorporating herein all previous negotiations and agreements, superseding all prior or contemporaneous proposals, communications and understandings, whether written and oral.
B) Amendment. This Agreement may only be amended by ActionAds. Any such amendment shall be in the sole discretion of ActionAds. You have no right to amend, waive or discharge this Agreement or any portion hereof, unless otherwise expressly authorized and approved by ActionAds in writing.
C). Language. This Agreement is drafted in English. Despite the fact of any translations of this Agreement the version of this Agreement in English shall prevail.
D) Assignment. You may not assign this Agreement without the prior written consent of ActionAds. ActionAds may assign this agreement at its sole discretion.
E) Partial Invalidity. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to Agreement.
F) Compliance with Law. Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Agreement.
G) Independent Contractors. The relationship of the parties shall be solely that of independent contractors, and nothing in the Agreement, or in the business or dealings between the parties, shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.
H) Notices. All notices and other items from one party to the other hereunder will be addressed to the address set forth in this clause or to such other address as the addressee may designate in writing. Any notice shall be sent either by personal delivery or commercial overnight delivery service, or by facsimile to the facsimile number of the party to be served, or by email. Notice shall be deemed complete when: (a) for materials personally delivered or sent by facsimile, when actually received by the party to whom addressed, (b) for commercial overnight delivery service materials, when delivered to the commercial overnight delivery service, and (c) for email, at the time the email is sent.
Any and all notices to you shall be sent to the address or to the email which you specified upon the registration in the User Account on the Website, if another is not expressly stated in this Agreement.
Any and all notices to ActionAds shall be sent to:
Nativly Group Ltd
Address: Quijano Chambers P.O. Box 315, Road Town, Tortola, British Virgin Islands
I) Jurisdiction and Venue; Attorney’s Fees. This Agreement shall be construed under the internal laws of the British Virgin Islands, without regard to its choice of law provisions. Each party agrees that the courts located in British Virgin Islands shall have exclusive jurisdiction over any dispute arising hereunder. Each party waives any objection it may have to such venue. The “prevailing party”, if any, in any action between the parties arising out of or related to this Agreement, shall be entitled to an award of reasonable attorney’s fees and costs.
J) Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, epidemic, accident, explosion, casualty, act of God, act of terrorism, lockout, strike, labor controversy or threat thereof, riot, insurrection, civil disturbance or commotion, boycott, disruption of the public markets, war or armed conflict (whether or not officially declared), sabotage, act of a public enemy, embargo, delay of a common carrier, the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law (the “Force Majeure)”; provided that the party relying upon this clause shall have given the other party written notice thereof promptly and, in any event, within five (5) calendar days of discovery thereof shall take all steps reasonably necessary under the circumstances to mitigate the effects of the Force Majeure upon which such notice is based and to fulfill the delayed or defaulted obligations as soon as the Force Majeure has ended.
K) Survival. All outstanding payment obligations, the complete sections entitled “Fees”; “Grant of License; Restrictions” and “Representations and Warranties,” and the sub-sections entitled “Your Responsibility,” “Survival,” and “Rights and Obligations Upon Expiration or Termination” survive the termination or expiration of this Agreement.
THIS VERSION OF TERMS OF SERVICE IS EFFECTIVE
Date last updated: June 16, 2017