ADGE PLATFORM TERMS OF SERVICE
VERSION 1 - JULY 2014
Thank you for registering to be a user of the Adge online tool (the “Adge Platform”), which integrates performance marketing and financial data for online gambling affiliates, provides analytics on online advertising campaigns, tracks internet traffic clicks and optimizes online advertising campaigns among other features, as the Provider may change such features from time to time, in its sole discretion.
These Terms of Service apply to you, a user of the Adge Platform, and constitute a binding, legal agreement ("Agreement") between you, as an individual, or if you are purchasing or using the Adge Platform on behalf of an entity, the legal entity that you represent ("you" or the "Customer"), and KAX Media Limited (Company Registration Number 1041601), a company organized under the laws of the British Virgin Islands (the “Provider”).
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY USING OR ACCESSING THE ADGE PLATFORM OR SITE OR REGISTERING AN ACCOUNT, YOU: (1) AGREE TO THESE TERMS ON BEHALF OF THE CUSTOMER, (2) REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE CUSTOMER, AND (3) AGREE THAT SUCH CUSTOMER WILL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ANY INDIVIDUAL USERS WHO REGISTER FOR OR USE THE ACCOUNT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT CLICK "I AGREE" AND YOU WILL NOT BE PERMITTED TO ACCESS OR USE THE ADGE PLATFORM.
You may not access the Adge Platform if You are a direct competitor of the Provider, except with the Provider’s prior written consent. In addition, You may not access the Adge Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
- “Adge Click Tracking” is a feature of the Adge Platform that enables the Customers to use the Adge Click Tracking Application Programming Interface (an “API”) to track and analyse the traffic that they are sending to their own advertising clients. Instead of sending their internet advertising traffic directly to their advertisers, the Customers send the traffic to the appropriately selected link on the Adge Click Tracking API which enables the Adge Platform to track and then forward the traffic to the same ultimate destination.
- “Account” refers to the Subscription Options selected by the Customer through the Provider’s customer portal at the time of enrollment, and accepted by Provider, as recorded by Provider through such portal.
- “Authorized User” means an individual who is authorized by You to use the Adge Platform, for whom you have ordered the Adge Platform, and to whom You (or the Provider, at your request) have supplied a user identification and password. Authorized Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which you transact business. You may not have a user identification or password that is vulgar, attempts to impersonate another person or violates the rights of others. The Provider may reject any user identification or password that the Provider determines is unacceptable for use on the Adge Platform.
- “Documentation” means the Provider’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via the Site or the Adge Platform.
- "Downloaded Software" means client software downloaded by an Authorized User from the Site (defined below) that augments your use of the Adge Platform, including add-ins and ancillary programs.
- "Site" means the web site at http://adge.com and/or such other web site or sites that Adge communicates to You where You may access the Adge Platform.
- "Software" means the Provider's proprietary software used by the Provider to deliver the Adge Platform, made available to You through the Site on a "Software as a Service" basis, and all updates and associated documentation thereto made available as a part of the Adge Platform pursuant to this Agreement. The term "Software" includes the Downloaded Software.
- “Subscription Options” are the various packages offered to the public to become a Customer by setting up an Account. Each Subscription Option has a unique fee, set of features and number of supported Affiliate Accounts (as defined below). The Provider may add, remove or amend the Subscription Options at any time. The Customer may change their Subscription Option at any time through the customer portal available at the Site.
- CONFIDENTIAL INFORMATION
In order for the Adge Platform to function properly, each Customer must disclose to the Provider information on the Customer’s affiliate accounts (“Affiliate Accounts”) the Customer wishes to include in the Adge Platform. Certain information obtained by the Provider in the course of events required to deliver the services from the Adge Platform shall be considered confidential (the "Customer Confidential Information"). Such Customer Confidential Information shall specifically include the following:
the existence of any of the Affiliate Accounts;
the API Keys, usernames and or passwords required to access the Affiliate Accounts;
the performance marketing or financial data within the Affiliate Accounts;
any information entered into the Adge Platform reporting console by the Customer;
meta-information on internet traffic sent from the Customer to the Adge Platform; and
commercial terms of any of the Affiliate Accounts.
The Customer Confidential Information furnished by the Customer shall not be used by the Provider in any manner other than as provided herein, and such information shall be kept confidential by the Provider; provided, however, that any of such information may be disclosed by the Provider to its attorneys and agents who need to know such information (it being understood that such attorneys and agents shall be informed by the Provider of the confidential nature of such information, shall be directed to treat such information confidentially and shall be bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such information). Notwithstanding the foregoing, the Customer Confidential Information may be used, and the Customer hereby grants the Provider a worldwide, limited license to use the Customer Confidential Information, as follows:
to present information, reports or data to the Customer via the Adge Platform, including but not limited to various report types, alerts, charts, comparisons and notifications;
to algorithmically generate anonymized industry benchmark information and other metadata, including but not limited to, various benchmark conversion rates for advertising clients, and other aggregated and/or analytical information that does not reveal any information about the Customer, any individual, or the contents of any Customer Confidential Information (collectively, “Benchmark Information”). The resulting Benchmark Information generated in part from the Customer Confidential Information is anonymized and consequently does not constitute and shall not be considered or deemed Customer Confidential Information, and the Provider may use such Benchmark Information for the Provider’s own purposes without restriction including, but not limited to, using such Benchmark Information in conjunction with data from other sources to improve the Provider's products and services and create new products;
to algorithmically evaluate the Customer’s commercial arrangements and from time to time propose advertising opportunities to the Customer; and
to host, copy, transmit and display the Customer Confidential Information, as necessary for the Provider to provide the Customer the Adge Plaftom in accordance with this Agreement.
"Provider Confidential Information" (and the Customer Confidential Information and Provider Confidential Information are sometimes referred to together herein as the “Confidential Information”) means any information or data that is disclosed by the Provider to the Customer pursuant to this Agreement that is marked as confidential or that the Provider orally designates as “Confidential” at the time of disclosure, provided the Provider confirms such designation in writing within five (5) business days. In addition, Provider Confidential Information (whether or not marked) includes the Adge Platform and Software (source code and object code), as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Adge Platform and Software.
The Provider Confidential Information furnished by the Provider shall not be used by the Customer in any manner other than as provided herein, and such information shall be kept confidential by the Customer; provided, however, that any of such information may be disclosed by the Customer to its attorneys and agents who need to know such information (it being understood that such attorneys and agents shall be informed by the Customer of the confidential nature of such information, shall be directed to treat such information confidentially and shall be bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such information).
Each party (the “Receiving Party”) shall use all reasonable steps to preserve the other party’s (the “Disclosing Party”) Confidential Information as trade secrets of the Disclosing Party and utilize at least the same precautions with respect to such Confidential Information as the Disclosing Party utilizes or would utilize to preserve its own trade secrets.
The term "Confidential Information" does not include information that the Receiving Party can demonstrate (a) is or becomes, through no act or failure to act on the part of the Receiving Party, generally available to the public, (b) was known by the Receiving Party on a non-confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party, (c) becomes rightfully available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that the Receiving Party is not aware such source is bound by a confidentiality agreement with the Disclosing Party or (d) is independently developed by the Receiving Party without reference to any information disclosed by the Disclosing Party.
Notwithstanding the foregoing provisions, the Receiving Party shall not be deemed to have breached this Agreement if it discloses Confidential Information that it is ordered or required to disclose by a judicial or governmental authority having jurisdiction over such party; provided, however, that the Receiving Party shall use reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment and provide the Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
Each party acknowledges that the unauthorized use or disclosure of the Disclosing Party’s Confidential Information would cause some harm to the Disclosing Party. Accordingly, each party agrees that the Disclosing Party shall have the right to apply for an immediate injunction or other equitable relief against any breach or threatened breach of this Section 2, as well as the right to pursue any and all other rights and remedies available at law or in equity in respect of such a breach.
In the event of a breach of this section 2 by the Receiving Party, the Disclosing Party shall be entitled to receive its reasonable attorneys' fees and costs from the Receiving Party, whether or not any litigation is commenced.
The obligations set forth in this Agreement will remain in effect for two (2) years after the date of the last disclosure of Confidential Information hereunder, and shall survive the termination of this Agreement.
Upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (at the Disclosing Party’s written request, in which case an officer of the Receiving Party will certify in writing to such destruction) all Confidential Information delivered or disclosed to the Receiving Party (including, with respect to you as Receiving Party, the Downloaded Software), together with all copies in existence thereof at any time made by the Receiving Party. Notwithstanding the preceding, the Provider shall be allowed to indefinitely retain any information which has been subjected to a process of anonymization.
- PROVIDER’S OBLIGATIONS
During the Term of the Agreement while the Customer is current with all fees due under this Agreement, the Provider shall:
present information, reports and data on the Customer’s Affiliate Accounts up to the number supported by the Customer’s Subscription Option via the Site.
procure, store and integrate data on the Customer’s Affiliate Accounts on an ongoing basis and for all historical periods requested by the Customer.
At all times during the Term of the Agreement while the Customer is current with all fees due under this Agreement, the Provider shall track, forward and analyse traffic sent via hyperlinks, commonly referred to as clicks, to the Adge Click Tracking API from the Customer’s websites and other marketing material.
The Provider and the Customer acknowledge that the processes behind the Adge Platform are highly complex electronic data integration systems and that any information, reports or data delivered by the Adge Platform may contain errors. While is the Provider makes commercially reasonable efforts to ensure accuracy, the Provider gives no guarantee or warranty whatsoever to the accuracy of the data.
Under the terms of and subject to the restrictions in this Agreement, including payment of all applicable fees, the Provider will provide the Adge Platform on a subscription basis to you during the term of this Agreement. You may use and access the Adge Platform and Software solely through the Site. Your rights to use the Adge Platform are non-exclusive, non-transferable, and non-sublicensable. You may use the Adge Platform only for your own benefit, and not for the benefit of any other third party.
The Provider may from time to time modify the Adge Platform and add, change, or delete features of the Adge Platform in its sole discretion, without notice to you. Your continued use of the Adge Platform after any such changes to the Adge Platform constitutes your acceptance of these changes. The Provider will use commerciallyreasonable efforts to post information on the Site regarding material changes to the Adge Platform.
- CUSTOMER’S OBLIGATIONS
All copyright, trademark, trade secret and other intellectual property rights in the Adge Platform shall remain at all times the property of the Provider and the Customer shall have no right or interest in the Adge Platform. The Customer acknowledges that the Adge Platform is confidential to the Provider and has been developed through the expenditure of substantial skill, time, effort and money.
The Customer will be solely responsible for (a) managing the access, passwords and permissions to its Account on the Adge Platform, (b) all use of the Adge Platform and Site made using your Authorized Users' user names and passwords, and (c) maintaining the confidentiality of your Authorized Users' user names and passwords.
Only one individual may access the Adge Platform at the same time using the same user name and password. You agree to notify the Provider immediately of any unauthorized use of an Authorized User's email address, user name or password, or any other breach of security regarding the Adge Platform of which you become aware.
The Provider will not be responsible for unauthorized access to the Customer’s Account. The Adge Platform may be used and accessed for your internal business purposes and only by your Authorized Users. You agree not to charge any Authorized Users to use the Adge Platform, either directly or indirectly. You shall be fully responsible for use of the Adge Platform by Authorized Users and their compliance with the terms of this Agreement.
The Customer grants to the Provider a non-exclusive, worldwide license to display the Customer’s name, logos and trademarks on marketing material for the Adge Platform, and to refer to the Customer as a user of the Adge Platform.
- SERVICE FEES
In order to access the Adge Platform, the Customer requires a valid Account subscription to the Adge Platform via one of the available Subscription Options.
The Customer shall be liable for the fee associated with the Customer’s respective subscription level in advance for each month.
If the Customer changes their Subscription Option, the amount of both the new and old Subscription Options will be pro-rated based upon the current day of the month. Changes to more expensive options will result in a new fee immediately billed to the Customer. Changes to less expensive options will result in a credit being applied to the Customer’s Account.
From time to time the Provider may offer various discounts, trials or incentives to new users of Adge Platform. Such incentives are not available to existing Customers.
- PAYMENT TERMS
All payments shall be made online by credit or debit card via the Adge Platform website, and the Customer hereby authorizes the Provider to charge such credit or debit card for the Adge Platform services provided during the Term. The Provider utilizes third party payment processors, and is not a bank nor does it offer banking services. By making use of some or all of these payment processing services, the Customer agree to be bound by the terms and conditions of the Provider’s third party payment processors’ terms and conditions and privacy policies and hereby consent and authorize the Provider to delegate the authorizations and collect, analyze, and share the information you provide to the Provider with the Provider’s third party payment processors to the extent required to provide the Adge Platform to the Customer.
Either party shall be entitled to terminate this Agreement without prejudice to its other rights and remedies forthwith on written notice in the event that the other shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver appointed to it or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it).
Either party may terminate this Agreement by notice in writing with immediate effect if the other party is in material breach of any of the terms of this agreement and such breach, where it is remediable, remains unremedied seven (7) days after receipt of notice from the terminating party that the other party is in breach.
The expiry or termination of this Agreement for any reason shall not affect any rights and / or obligations accrued before the date of termination or expiry, or expressed or intended to continue in force after and despite expiry or termination.
- TERM & TERMINATION
The term of this Agreement starts on the Effective Date above and, unless earlier terminated as provided herein, will last until the Customer cancel’s their subscription to the Adge Platform (the “Term”).
Any refunds for payments made under this Agreement are at the sole discretion of the Provider. The fees and rates under this Agreement are subject to change by the Provider upon at least thirty (30) days written notice, which notice may include by posting the updated fees and rates on the Site.
Customers may cancel their Account on the Adge Platform at any time through the customer portal available at the Site. Cancelled Accounts will not receive any refunds.
All payments from the Customer to the Provider under this Agreement are inclusive of all taxes (including Value Added Tax, where applicable), duties, fees, excises or tariffs. The Customer shall be liable for any taxes, of whatever nature, relating to such payments should they fall due. Should Fees be subject to VAT then the calculation for Fees shall be deemed to have previously included this sum and the Customer shall issue a receipt to the Provider [payment/(1+VAT%)] for each relevant period.
- REPORTING & NOTICES
All notices, reports and other communications required or permitted here under shall be in writing and shall be deemed effectively given by (a) personal delivery, (b) email delivery or (c) registered or certified mail, return receipt requested, postage prepaid, addressed to:
The details provided in the Customer’s Account profile on the Adge Platform.
KAX Media Limited
P.O. Box 71
Road Town, Tortola
British Virgin Islands
The Provider warrants to the Customer that it will use reasonable skill and care in attempting to maintain the availability of the Site and the Adge Platform, but does not warrant that the Site or the Adge Platform will be available at all times. The Provider warrants that the Adge Platform will substantially conform to the written or electronic documentation provided by the Provider in connection with the Adge Platform. In the event of a breach of this warranty by the Provider, as the Customer’s sole and exclusive remedy, the Provider will, at its expense, use commercially reasonable efforts to cause the Adge Platform to conform.
Each party to this Agreement represents and warrants to the other that it has, and will retain throughout the Term, all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.
Each party to this Agreement represents, warrants and undertakes to the other that it has obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement and that it fully complies with, and shall continue fully to comply with, all applicable laws and regulations including but not limited to all the provisions of the Data Protection Act 1998 and any successor or similar legislation (including secondary legislation).
You represent and warrant that the Customer Confidential Information and associated content and data (collectively, "Client Data") provided to the Provider in connection with your use of the Site and the Adge Platform: (i) is owned by you, or you have the full right to provide the Client Data to the Provider; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person's right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that your use of Client Data on the Site or in connection with the Adge Platform is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. You are solely responsible for the Client Data, and acknowledge that the Provider has no responsibility or intent to review or monitor any Client Data. The Provider is not responsible for the accuracy, completeness or integrity of any Client Data entered into the Adge Platform via electronic data interface, integrations with Your systems, or manually entered by the Customer, the Customer’s representatives or contractors, or otherwise. The Provider does not warrant the accuracy of data in reports generated using Client Data and expressly disclaims responsibility for the results obtained through reports designed and generated by You using the Adge Platform's reporting functionality. You are solely responsible for data validation in any reports designed and generated by You.
THE PROVIDER DOES NOT WARRANT THAT THE ADGE PLATFORM OR THE SITE WILL OPERATE WITHOUT INTERRUPTION OR ERROR-FREE, OR THAT THE ADGE PLATFORM OR THE SITE WILL BE TOTALLY SECURE. UNDER NO CIRCUMSTANCES WILL THE PROVIDER BE HELD LIABLE FOR ANY LOSS OF, DAMAGE TO OR DISCLOSURE OF YOUR DATA OR ANY CLIENT DATA. TO THE EXTENT THAT DATA IS BEING TRANSMITTED OVER THE INTERNET HEREUNDER, YOU ACKNOWLEDGE THAT THE PROVIDER HAS NO CONTROL OVER THE FUNCTIONING OF THE INTERNET, AND THE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PERFORMANCE OF THE INTERNET. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ADGE PLATFORM AND USE OF SOFTWARE ARE PROVIDED "AS IS;" AND THAT THE PROVIDER MAKES NO (AND, EXCEPT AS PROVIDED IN THIS SECTION, HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND WHATSOEVER, WHETHER WRITTEN OR ORAL, OR EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF TITLE, AGAINST INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE ADGE PLATFORM, SITE OR SOFTWARE (OR ANY COPY OR COMPONENTS THEREOF) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY THE PROVIDER, OR THEIR QUALITY OR RELIABILITY, OR OTHERWISE ARISING UNDER THESE TERMS. THE PROVIDER IS NOT RESPONSIBLE FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER, CUSTOMER'S CLIENTS, OR ANY OTHER PERSON IN RELIANCE UPON ANY CUSTOMER CONFIDENTIAL INFORMATION OR OTHER DATA OR THE ADGE PLATFORM OR AS A RESULT OF YOUR USE OF THE ADGE PLATFORM.
- INTELLECTUAL PROPERTY
The Customer agrees that the Provider and its licensors, if any, own all intellectual property rights in and to the Adge Platform, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. The Customer will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. The Customer further agrees not to resell, lease, rent, assign, distribute, time share or otherwise commercially exploit or make the Adge Platform available to or for the benefit of anyone other than the Customer or the Customer’s Authorized Users.
Subject to the limited rights expressly granted to the Customer hereunder, the Provider reserves all rights in the Adge Platform, Site, and Software, including all intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth in this Agreement.
The Provider shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Adge Platform any suggestions, ideas, enhancement requests, corrections, feedback, or other information provided by the Customer or any Authorized User relating to the Adge Platform.
The trademarks, logos and company names used on the Site or in connection with the Adge Platform are the property of the Provider or the respective trademark owner. Nothing contained on the Site or Adge Platform should be construed as granting the Customer any license or right to use these trademarks or logos.
You shall be solely responsible for your use of the Adge Platform, and, except as otherwise agreed in writing by the parties, for maintaining backup copies of Your Data. You acknowledge and agree that the Adge Platform is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.
The Adge Platform may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems ("Third-Party Materials"). Your use and access of these features and functionality are subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. The Provider has no responsibility for any Third-Party Materials, and you irrevocably waive any claim against the Provider with respect to such Third-Party Materials.
You, at your expense, shall indemnify, defend and hold the Provider and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney's fees) arising out of or relating to your use of the Adge Platform, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any third party claims relating to: (a) your breach of any representations, warranties, or covenants in this Agreement, (b) your compliance with applicable laws and regulations, and (c) Your Data. The Provider shall provide you with prompt written notice of any such claim.
- LIMITATION OF LIABILITY
THE LIMIT OF THE PROVIDER'S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR BY STATUTE OR OTHERWISE) TO YOU OR TO ANY THIRD PARTY CONCERNING PERFORMANCE OR NON PERFORMANCE BY THE PROVIDER, OR IN ANY MANNER RELATED TO THIS AGREEMENT OR THE ADGE PLATFORM, FOR ANY AND ALL CLAIMS SHALL NOT EXCEED IN THE AGGREGATE THE SUBSCRIPTION FEES PAID BY YOU TO THE PROVIDER HEREUNDER WITH RESPECT TO THE ADGE PLATFORM AT ISSUE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THAT THE RELEVANT CAUSE OF ACTION ACCRUED.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE LOSS, DAMAGE OR EXPENSES WHETHER ARISING IN CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, OR THE COST OF RECREATING LOST DATA), EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES AND THE PROVIDER'S COMPENSATION REFLECTS SUCH ALLOCATION. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 13, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
The Customer shall only be entitled to assign its rights and obligations under this Agreement with the written consent of the Provider (such consent not to be unreasonably delayed or withheld) except that the Customer shall be entitled to assign its rights and obligations under this Agreement without consent but with notice to a subsidiary or holding company (as defined in section 736 of the Companies Act 1985) or a purchaser of all or a substantial part of its assets. The Provider may assign this Agreement and any of its rights hereunder to third parties. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, and their respective permitted successors and permitted assigns.
The Customer acknowledges that it has no authority to bind the Provider in any way, or to enter into any agreement, arrangement or contract on the Provider’s behalf, and the Customer agrees that it will not hold itself out as having any such authority. Any correspondence issued by the Customer shall be on its own stationery and the Customer agrees that it will not misrepresent the Provider, or its relationship with the Provider, in any way.
The Customer is an independent contractor, and nothing in this agreement shall constitute the creation, establishment or relationship of partnership, joint venture or employer and employee between the parties.
The headings of this agreement shall not affect its interpretation.
This agreement does not constitute an exclusive agreement and nothing in this agreement shall preclude either party from committing to similar arrangements with other institutions or individuals.
This Agreement together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.
Notwithstanding any other provision in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to rely upon or enforce any term of this Agreement.
This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
A waiver of a breach of any of the terms of this Agreement or of a default under this agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this agreement. A waiver of a breach of any of the terms of this agreement or of a default under this agreement will not prevent a party from subsequently requiring compliance with the waived obligation.
The Provider may amend this Agreement from time to time by posting an amended version at its Site and sending the Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless the Customer first gives the Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of the Customer’s next Term following the Proposed Amendment Date. Customer’s continued use of the Adge Platform following the effective date of an amendment will confirm the Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by authorized representatives of each party.
Any claim, dispute, or controversy of whatever nature arising out of or relating to this Agreement, including, without limitation, any action or claim based on tort, contract, or statute (including any claims of breach or violation of statutory or common law protections from discrimination, harassment and hostile working environment), or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement (a "Claim"), shall be resolved by final and binding arbitration before a single arbitrator (the "Arbitrator") selected from and administered by the London office of JAMS (the "Administrator") in accordance with its then existing commercial arbitration rules and procedures. The arbitration shall be held in London England. The Arbitrator shall, within fifteen (15) calendar days after the conclusion of the Arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief he or she deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. Each party shall bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys' fees, costs and disbursements, and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator's award may be enforced in any court of competent jurisdiction.
Nothing in this Section 16.1 or in this Agreement shall limit a party’s right to seek equitable relief to protect its confidential information or intellectual property rights in any court of competent jurisdiction.