Terms of Service
Last Revised: April 20, 2021
The Terms of Service set forth below (the “Terms of Service” or “Terms”) govern the CUSTOMER’s use of Shotzr Platform, a product owned by SHOTZR. The CUSTOMER’s access to and use of Shotzr’s product and services is subject to these Terms and Conditions, the Campaign Agreement and the policies of the Website (defined below), as such Documentation and policies may change from time to time.
- “Campaign Agreement” is the accompanying agreement signed by the CUSTOMER, committing the CUSTOMER to all of the terms of the Campaign Agreement.
- “Shotzr Agreement” encompasses the Campaign Agreement and its Terms and Conditions, further defined in this document.
- “Shotzr Platform” means the creative optimization ad serving platform and related software, and any and all upgrades thereof, which purpose is to facilitate the creation, targeting, delivery, measurement and optimization of advertising content in ADVERTISER’s advertisers’ online advertising programs.
- “CUSTOMER” is defined and identified in the signed Campaign Agreement.
- “Advertiser” is defined as a client or property of CUSTOMER, either a person or company who provides advertising, whether directly or through the CUSTOMER, to promote itself, its brands or the products or services that it offers.
- “Ad Tag” means the Ad Tag Code generated by SHOTZR and installed on a web page, which is required for the delivery of advertising.
- “Ad Tag Code” means the script generated by SHOTZR for the delivery of advertising content.
- “Impression” is defined as occurring each time an SHOTZR ad tag delivers an advertisement to a website, resulting from a user accessing or visiting such web site.
- “Launch Date” is defined as the date ADVERTISER provides SHOTZR confirmation, either in written or electronic form, to begin building the initial ADVERTISER campaign.
- “Advertising Networks” means all websites accessed by ADVERTISER for the purpose of delivering advertisements, using SHOTZR.
2. License To Use Platform
SHOTZR grants to ADVERTISER the non-exclusive, non-transferable, non-sub licensable right and license to access and use SHOTZR as described in this Agreement and in accord with any technical requirements and/or policies specified by SHOTZR.
SHOTZR owns all right, title and interest in and to SHOTZR. SHOTZR does not grant any other license, express or implied, to SHOTZR’s intellectual property rights. SHOTZR expressly reserves all intellectual property rights not expressly granted hereunder. ADVERTISER will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble SHOTZR or any portion thereof.
3. Term and Termination
3.1. Term These Terms and Conditions are in effect as long as the CUSTOMER has active campaigns with SHOTZR, as defined in the Campaign Agreement.
3.2. Termination Either party may terminate the Shotzr Agreement without cause.
4. Campaign Services & Fees
Services and Fees are set forth in the Campaign Agreement.
5. Invoicin and Payment
For Shotzr Platform Usage and Services delivered by SHOTZR, CUSTOMER agrees to pay the fees set forth in the Shotzr Agreement in respect of CUSTOMER’s usage of such services. All fees due to SHOTZR will be payable monthly in accordance with an invoice to be delivered by SHOTZR to CUSTOMER prior to the 10th day of each month, covering the preceding months fees and services. Such invoice will be conclusively deemed to be received by CUSTOMER if delivered by SHOTZR to the Address for CUSTOMER described in the Campaign Agreement or via email to a designated CUSTOMER contact.
SHOTZR will process payments via CUSTOMER’s approved credit card at the time of invoice delivery.
5.3 Examination of Statements
CUSTOMER must notify SHOTZR, not later than ten (10) business days after the receipt of a statement or invoice, if CUSTOMER believes that the statement or invoice contains any errors, irregularities or omissions or if CUSTOMER has any other objection with respect to the invoice or statement. Thereafter, the invoice or statement, as the case may be, will be deemed to be finally and conclusively settled and accepted by the parties as a true, complete and correct statement of the amount properly chargeable by SHOTZR to CUSTOMER.
5.4 Primary Obligation
For greater certainty, CUSTOMER acknowledges and agrees that its obligation to make payment to SHOTZR hereunder is not in any way contingent upon its collection of fees from CUSTOMER’s advertising clients or contingent on any other payment payable to it, directly or indirectly, by any other person.
All dollar amounts referred to in the Shotzr Agreement are to the lawful money of the United States ($US), unless expressly noted otherwise in the Shotzr Agreement.
ADVERTISER and SHOTZR agree that either party may use each other’s name and logo in presentations, marketing materials, press materials, customer lists, financial reports and Web site listings of customers and therefore grant each other a limited license to use each other’s logo in accordance with the foregoing.
7. Use of Data
7.1 By ADVERTISER
ADVERTISER may use all data derived from ADVERTISER’s use of the Shotzr Platform for any purpose related to ADVERTISER’s business with Advertisers.
7.2 By SHOTZR
SHOTZR may, without ADVERTISER’s consent, use, diagnose and otherwise harness, in whole or in part, all data derived from ADVERTISER’s use of the Shotzr Platform (a) for any purpose related to SHOTZR’s business operations, on an aggregate basis such that any use or disclosure of such aggregate data does not permit a third party to associate any particular data with ADVERTISER, (b) to operate, manage, maintain and improve SHOTZR, and (c) if required by court order, law or governmental ADVERTISER.
7.3 End-User Data
Any end-user data or information which SHOTZR receives from ADVERTISER’s use of the Shotzr Platform, whether provided by ADVERTISER, end-user, or collected by SHOTZR in performing its obligations under this Agreement, may be used by SHOTZR for any purpose, but only to the extent that such data or information is used through non personally identifiable methods.
Representations and Warranties
8.1 Mutual Representations and Warranties
Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the acceptance of this Agreement by such party, and the performance by such party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when agreed upon by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions.
8.2 ADVERTISER’s Representations and Warranties
ADVERTISER represents and warrants that:
(a) ADVERTISER’s use of the Shotzr Platform will comply with all applicable Laws (including that ADVERTISER’s collection, use and storage of data in connection with or resulting from its use of SHOTZR shall comply with all applicable privacy Laws); and
(b) If applicable, ADVERTISER has entered into Agreements with each Advertiser granting ADVERTISER the right to deliver said Advertiser’s advertisement on the Advertiser Networks, using the SHOTZR platform.
(c) ADVERTISER and/or Advertisers own and/or have the right to use to the extent necessary all material contained in the advertisement, including, without limitation, the copyright, trademark and other proprietary rights in and to such materials and the use of such materials will not violate any federal, state or local laws or regulations;
(d) ADVERTISER and/or Advertisers have secured the requisite permission to use any person’s name, voice, likeness and performance as embodied in the advertisement, or any other element contained in said material.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SHOTZR PROVIDES ALL OF ITS SERVICES, TECHNOLOGY AND CONTENT, ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SHOTZR DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ITS SERVICES, TECHNOLOGY AND CONTENT PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY OF CONTINUOUS, UNINTERRUPTED OR ERROR-FREE OPERATION.
During the term of this Agreement and for a three (3) year period thereafter, each party agrees to hold the Confidential Information of the other party in confidence, and not to use or disclose such Confidential Information, except as permitted hereunder. “Confidential Information” means the relationship of the parties, the fact and substance of this Agreement, and any and all technical and non-technical information disclosed by one party to the other under this Agreement related to the past, present or future business or technology of the disclosing Party.
SHOTZR Confidential Information includes, but is not limited to, all SHOTZR software, technology, programming, technical specifications, materials, ad-serving codes and tags relating to the SHOTZR service. Notwithstanding the foregoing, neither party will have any obligation under this Section with respect to any information that it can prove (i) is generally known to the public through no unauthorized act or failure to act by the receiving party; (ii) was known to the receiving party without an obligation of confidentiality prior to receiving such information from the disclosing party; (iii) is hereafter furnished to the receiving party by a third party as a matter of right and without restriction on disclosure; or (iv) is independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information. Nothing in this Agreement will prevent the receiving party from disclosing information to the extent the receiving party is legally compelled to do so by any governmental investigative or judicial ADVERTISER pursuant to proceedings over which such ADVERTISER has jurisdiction; provided, however, that prior to any such disclosure, the receiving party shall (a) assert the confidential nature of the information to the ADVERTISER; (b) immediately notify the disclosing party in writing of the ADVERTISER’s order or request to disclose; and (c) cooperate fully with the disclosing party in protecting against any such disclosure.
Each party (each, an “indemnifying party”) agrees to indemnify, defend and hold the other party, including its directors, officers, employees and agents (each, an “indemnified party”) harmless from and against any third-party claim, loss, damage, expense or liability, including reasonable attorneys’ fees and court costs, arising out of or in connection with the breach or alleged breach of any warranty, representation or covenant made herein by an indemnifying party, or any third-party claim that, if true, would constitute a breach of any warranty, representation or covenant made herein by an indemnifying party. The foregoing indemnity terms are conditioned upon (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnity is claimed; (b) the opportunity for complete control of the defense and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request. Neither party shall, without the prior written consent of the other party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against the indemnified party.
12. Compliance with Laws
ADVERTISER will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any applicable governmental authority.
13. Relationship of the Parties
The parties agree and acknowledge that the relationship of the parties is in the nature of an independent contractor. Neither party may in any manner misrepresent or embellish the relationship between SHOTZR and ADVERTISER, or express or imply any relationship or affiliation between the Parties except as expressly permitted by this Agreement (including by expressing or implying that SHOTZR supports, sponsors, or endorses any content of ADVERTISER’s Advertisers).
14. Limitation of Liability
SHOTZR WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SHOTZR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER’S SOLE REMEDY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO SHOTZR or SHOTZR SERVICES IS TO STOP USING THEM. IN THE EVENT THAT THE PRIOR PROVISION IS HELD INVALID, SHOTZR’S TOTAL LIABILITY FOR ANY DAMAGES PERMITTED BY LAW DESPITE THIS LIMIT OF LIABILITY AND FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNT ADVERTISER PAID FOR THE USE OF THE SHOTZR PLATFORM or SHOTZR SERVICES OVER THE THREE MONTHS PRECEDING THE CLAIM OR $5 (FIVE DOLLARS), WHICHEVER IS GREATER.
This Agreement will be governed by, construed and enforced in accordance with the laws of Colorado, without regard to its conflict of laws provisions. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. The failure of either party to partially or fully exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of this Agreement. This Agreement sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all prior negotiations, understandings and agreements concerning such subject matter. No amendment or modification of this Agreement shall be made except by a writing signed by both parties. Any assignment or delegation of the rights or obligations hereunder, in whole or in part, or any other interest hereunder, without prior written consent, shall be void, except that either party reserves the right to assign this Agreement to any parent, subsidiary, affiliate, or successor company. Sections 3, 7, 9, 10,11, 12, 13, 14, 15 will survive the termination of this Agreement for any reason. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.