You are an automobile dealer and you are referred to hereinafter as “you” / “your” / “yourself” or “Subscriber”.
Outsell Social Ads is a unique solution that helps you reach the unreachable consumers in your database, attract new buyers to your store, and keeps active in-market shoppers engaged with relevant, eye-catching ads on the web’s most popular social platform. The Social Ads product may be accompanied or supplemented by additional software, technology, information in various formats, or other supporting items, which are hereinafter referred to as “Supplementals”. Social Ads and all Supplementals are collectively referred to hereinafter as the “Service”.
Please read these terms carefully, because you will be required to indicate your understanding of and your affirmative agreement to the Terms of this Agreement by clicking through the “I CONSENT” box before you will be able to use the Service, and because if you and your employees do not comply with and abide by this Agreement, your use of the Service may be suspended or terminated, and you may incur criminal and/or civil liability for, among other things, infringement of intellectual property. IF YOU DISAGREE WITH ONE OR MORE OF THESE TERMS OR FIND THEM UNACCEPTABLE IN ANY WAY, YOU SHOULD NOT USE THE SERVICE.
Outsell reserves the right, in its sole and absolute discretion, to change, modify, update, and interpret these Terms at any time, and you agree to be bound by those changes, modifications, updates and interpretations. You should therefore review these Terms periodically to familiarize yourself with any changes, modifications, updates and interpretations.
2. License for Subscribers. Under and subject to this Agreement, you, as a Subscriber, are granted a non-exclusive, non-refundable, revocable, non-transferable, limited right to electronically access the Service via the Outsell Fuel platform (“License”). The License is subject to the following obligations, conditions and limitations, with which you must comply.
- Authorized Users. The use of the Service requires you to register your employees designated as persons authorized to use the Service within Outsell Fuel (“Authorized Users”).
- Usernames and Passwords. You understand, acknowledge, and agree that you are solely responsible for ensuring the confidentiality of your usernames and for the passwords of your Authorized Users, and you agree, on behalf of yourself and your Authorized Users, not to disclose to any other person or entity your usernames and/or passwords or to otherwise share your Subscription with any unauthorized entity or person.
- Limitations on Your Access and Prohibited Uses. You hereby understand, acknowledge, and agree that you and your Authorized Users will not —
(1). alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Service, in whole or in part; and/or
(2). remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to Outsell, or any other third-party provider of components to the Service and/or
(3). copy, reproduce, publish, distribute, or redistribute any of the Service, in whole or in part, to any person who is not an Authorized User specifically covered by your Subscription; and/or
(4). sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the License or the Service, any rights granted under this Agreement, or any Intellectual Property Rights of Outsell or any other third-party provider of components of the Service ; and/or
(5). provide any person other than an Authorized User or any entity access to the Service by means of your usernames and/or your passwords; and/or
(6). lend, lease, license, sublicense, transfer, assign, sell, or resell your usernames and passwords to any other person or entity; and/or
(7). decompile, disassemble, translate or reverse engineer any portion of the Service, or otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Service, or make or attempt to make any form of derivative work based on or including any part of the Service or its Supplementals in whole or in part; and/or
(8). make or attempt to make any commercial use or exploitation of the Service, in whole or in part; and/or
(9). circumvent, disable or otherwise interfere with the security features of the Service, or any features that prevent or restrict use or copying of any part of the Service, or enforce limitations on use of the Service; and/or
(10). use the Service to independently collect or harvest any personally identifiable information, including names and contact information regarding persons other than your own Customers, and usernames and passwords (further defined in Section 3 below) from persons other than your own Authorized Users;
(11). create multiple accounts within Outsell Fuel by manual or automated means or under false or fraudulent pretenses; and/or
(12). create or transmit unwanted electronic communications such as “spam” to other Subscribers or otherwise interfere with any other Subscriber’s proper use of the Service; and/or
(13).transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on Outsell Fuel; and/or
(14). use the Service to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or
(15). use any device, software or routine that you have knowledge might interfere with the proper working of the Service; and/or
(16). claim the Service or any Supplemental as your property, your creation, or your work of authorship, in whole or in part; and/or
(17). contest or dispute Outsell’s and/or Outsell’s partners’ ownership of all intellectual property rights in the Service, in whole and in part; and/or
(18). use the Service after the termination date of your License; and/or
(19). fail at any time to provide true, accurate, complete, and current contact details for your Authorized Users; and/or
(20). use the Service and/or the Content, in whole or in part, in any manner not authorized by these Terms.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS 2.D.(1)-(20) MAY, IN OUTSELL’S SOLE DISCRETION AND JUDGMENT, SUBJECT YOU TO THE IMMEDIATE SUSPENSION OR TERMINATION OF YOUR LICENSE.
- Term. The period of time in which you will be able to access the Service begins on the day you activate your Subscription and consent to this Agreement (“Term”). Unless terminated earlier, your License will expire upon the expiration of your Subscription.
- Monthly Media Budget. You understand and acknowledge that Outsell does not control the cost of media buys, it may not be possible for Outsell to spend the exact amount of your monthly minimum media budget each month, and that Outsell is not required to credit any unspent media budget at the end of each month, nor to apply it to future months of payment.
- Additional Charges from Ad Networks. Some ad networks bill either once a budget allocation is reached, at the end of the calendar month, or another specified date. These networks may charge an additional fee if the billing amount is not received by the time the specified billing date is reached. In the event that we do not receive your payment for the Service by the network’s specified billing date, you agree that you are liable to pay this additional fee.
- No Transfer of Rights. You understand and acknowledge that the License grant made herein is explicitly not a sale or transfer of rights, and that the License consists solely of access to the Service pursuant to your Subscription and in accordance with this Agreement. Outsell and its Supplementals retain all their respective ownership rights, including all Intellectual Property Rights (as defined in Section 11), to the Service.
3. Suspension and Termination.
- Outsell’s Right of Suspension. You understand, acknowledge, and agree that Outsell shall have the right, in its sole discretion and judgment, to suspend, immediately, with written notice to follow, your access to the Service, in whole or in part, upon Outsell’s obtaining or receiving credible evidence of any breach or awareness of an alleged breach or violation by you or by one or more of your Authorized Users of any of the provisions of this Agreement.
- Outsell’s Rights of Termination. You understand, acknowledge, and agree that Outsell shall have the right to terminate your Subscription and your access to the Service at any time and for any reason by providing you with written notice of termination at least fourteen (14) days in advance of the Termination Date. Further, you understand, acknowledge, and agree that Outsell shall have the right to terminate your License, your Subscription, and this Agreement, immediately, with written notice to follow, upon Outsell’s obtaining or receiving credible evidence of any breach or violation by you or by one or more of your Authorized Users of any of the Terms of this Agreement.
- Your Rights of Termination. Outsell understands, acknowledges, and agrees that you shall have the right to terminate your License, your Subscription, and this Agreement, immediately upon written notice to Outsell in the event that Outsell is in breach of any of the Terms of this Agreement, and Outsell has failed to cure the breach within sixty (60) days of Outsell’s receipt of your written notification of the breach.
4. Personally Identifiable Information and Data. Personally identifiable information is information about a living individual and for which there exists a reasonable expectation of personal privacy, and it includes, but is not limited to, names, addresses, telephone numbers, email addresses, and financial information (“PII”). In contrast, Data, as defined herein for purposes of this Agreement, consists of anonymized and non-personally identifiable online behavioral and demographical data generated by visitors to a website.
- Ownership. Outsell acknowledges and agrees that you are the owner of all PII and Data that you submit to or is otherwise collected by Outsell and its partners, pursuant to your Subscription, and in order to exercise your License to access the Service, regardless of whether the PII and Data concerns your Customers or your Authorized Users. Nothing in this Agreement constitutes a transfer or conveyance to Outsell of any ownership interest in your PII and Data.
- License to Use PII. You hereby grant Outsell a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to preserve your PII and to use your PII for the sole purpose of providing the Service to you under this Agreement (“PII License”).
- Third Party Network Access to PII. In order to provide the Services and serve relevant ad content, Outsell will provide consumer PII to certain online platforms used to build social networks (“Social Advertising Networks”) for the sole purposes of identifying your consumers on Social Advertising Networks. This information may include consumer name, phone number, email address, or any combination of these.
(1) Confidentiality. Outsell understands, acknowledges, and agrees to use the best and most currently accepted industry standards to preserve the privacy of your PII and otherwise to comply with all applicable laws in their performance hereunder, including all applicable laws concerning privacy. To that end, Outsell has administrative procedures, technical measures, and physical barriers to prevent the loss, destruction, theft, misuse, disclosure, or unauthorized access to your PII. Outsell promises to keep your PII in strict confidence, and not to disclose or share your PII with their partners or sub-contractor service providers or with any third party except Outsell may disclose or share your PII with Social Advertising Networks in accordance with this Agreement, in circumstances in which you have provided your specific written permission in advance, or in circumstances in which a court having jurisdiction compels Outsell to disclose PII pursuant to a judicial order (in such instances, where permitted by law, Outsell shall provide you with advance written notice and an opportunity to challenge such order).
- License to Use Data. You hereby grant Outsell a limited, irrevocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to collect, gather, use, preserve, retain, archive, organize, aggregate, analyze, prepare reports on, delete copies of, and disclose your Data for the sole purposes of providing, administering, improving, and updating the Service (“Data License”). You understand, acknowledge, and agree that Outsell may combine your Data with that of other Subscribers for purposes of improving the Service and providing you and other Subscribers with more comprehensive reports on the behavior of your Customers in comparison to other Subscribers’ Customers.
5. Availability of the Service.
- Interruptions. Outsell will use commercially reasonable efforts to maintain the availability of the Service twenty-four (24) hours per day, seven (7) days per week. Nevertheless, scheduled and unscheduled interruptions may occur. Outsell does not warrant or guarantee uninterrupted availability of the Service. Normal software or hardware upgrades are typically scheduled for nights and weekends and designed to cause a minimal interruption to the Service. Outsell will make reasonable efforts to notify you in advance of scheduled interruptions. If an unscheduled interruption occurs, Outsell shall assign the appropriate internal and external resources to resolve the problem and return the Service to availability as soon as possible. You agree to cooperate with Outsell during scheduled and unscheduled interruptions in the Service. In no event shall Outsell be liable for any fees, costs damages or other amount incurred, due to scheduled or unscheduled interruptions, for the cost of temporary unavailability of the Service.
- Accidental Loss of Data. Outsell uses commercially reasonable practices, including redundancy, failover, and backup practices, to minimize risk of loss of Data. However, Outsell does not warrant or guarantee that such events shall not ever occur. At the termination of your Subscription, Outsell shall return your Data to you in its standard format at no additional cost.
- Service Warranty. Outsell warrants and represents that it shall provide the Service in a manner consistent with this Agreement (“Service Warranty”). In the event of an error in the functionality of the Service (“Error”), Outsell will use commercially reasonable efforts to correct the Error or re-perform the Service within 30 days after Outsell’s receipt of written notice from you of the occurrence of the Error. If, however, Outsell is unable to correct the Error or re-perform the Service, you may terminate this Agreement upon notice to Outsell and Outsell shall refund the amounts paid by you for Service for the period during which the Service were not available to you.
(1). Errors Excluded. This Service Warranty does not cover or apply to any Error caused by you or your Authorized Users’ deliberate misuse of the Service, any Error caused by use of the Service in a manner inconsistent with this Agreement, any Error caused by your third-party components of software or hardware which adversely affect the operation of the Service, or any Error caused by a force majeure event (such as a general power outage, a natural disaster, an act of war or terrorism, or a civil uprising). .
(2). Internet Problems. The Service may be subject to limitations, delays, Errors, and other problems which are the result of problems inherent in the use of the internet and electronic communications.
- Maintenance and Development. Outsell reserves the right to modify, suspend, impose limits on certain features of the Service, restrict access to parts of the Service, or temporarily or permanently discontinue the Service or any portion thereof at any time, including the availability of any functionality of the Service, for the purposes of maintaining and developing the Service. If Outsell makes changes in the Service, you understand and acknowledge that you may no longer be able to use the Service to the same extent or in the same manner in which you used them prior to such change or discontinuation, and, unless such modifications are material and adversely affect your ability to use and enjoy the Service, that Outsell shall have no liability to you with respect to the impact such changes have on your use and enjoyment of the Services. If, on the other hand, Outsell makes material modifications which adversely affect your ability to exercise the License granted to you under this Agreement, Outsell shall provide you with an appropriate pro rata refund of your subscription fees.
6. Your General Representations and Warranties. You, on behalf of yourself and of your Authorized Users for whom you are responsible, represent and warrant the following in respect of this Agreement:
- That you have the necessary authority to enter into this Agreement; and
- That you and your Authorized Users shall cooperate with all of the instructions, rules, and procedures of your Subscription in all of your activities in regard to exercising your License and accessing the Service throughout the Term; and
- That you have provided and will continue to provide true, accurate, current, and complete contact details throughout the Term for your Authorized Users; and
- That you will ensure that both you and your Authorized Users will respect and abide by all of your obligations under this Agreement, including your responsibilities under Section 2.D. of this Agreement, and perform your obligations under this Agreement diligently; and
- That you and your Authorized Users, in performing your obligations under this Agreement, will comply with all applicable laws and regulations.
7. Outsell’s General Representations and Warranties. Outsell represents and warrants the following in respect of this Agreement:
- That it is authorized and have all authority necessary to enter into and perform under this Agreement; and
- That the Service does not infringe any intellectual property rights of any third party; and
- That it will use best efforts and all reasonable best industry practices and technical measures to safeguard and preserve the privacy and confidentiality of your PII in accordance with this Agreement; and
- That it will not share or disclose your PII except as provided in this Agreement; and
- That it will respect and abide by all of their obligations under this Agreement and will perform their obligations under this Agreement diligently; and
- That it will comply with all laws and regulations applicable to this Agreement.
8. NO OTHER WARRANTIES. OUTSELL’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY OUTSELL WITH RESPECT TO THE SERVICE, AND ANY OTHER ITEM OR SERVICE PROVIDED TO YOU BY OUTSELL AS PART OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, ALL SERVICE, THE CONTENT, AND ANY OTHER ITEMS ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS. OUTSELL EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. OUTSELL RESERVES THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE SERVICE, AT ANY TIME, WITH OR WITHOUT NOTICE. OUTSELL DOES NOT REPRESENT, WARRANT, OR GUARANTY TO SUBSCRIBER OR TO ANY OF SUBSCRIBER’S AUTHORIZED USERS ANY PARTICULAR RESULTS TO BE ACHIEVED BY SUBSCRIBER AS A DIRECT RESULT OF SUBSCRIBER’S SUBSCRIPTION TO THE SERVICE.
- Your Indemnification Obligation. You shall indemnify and hold harmless Outsell, its officers, directors, employees, agents, and representatives, partners, and subcontractors from, and, at your expense, shall defend Outsell and Outsell’s partners and subcontractors against any liability, loss, damage or expense (including reasonable legal fees and costs) that they incur or become liable for as a result of any breach by you or your Authorized Users of any of the Terms of this Agreement, or any negligent or willful misconduct by you or your Authorized Users. You shall reimburse Outsell for its expenses under this Section as they are incurred. Outsell shall have the right, at their own expense, to participate in the defense of any claim, action or proceeding against which they are indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Outsell, enter into any settlement which adversely affects the rights of Outsell or which does not include, as an unconditional term, a release granted to Outsell of all liabilities in respect of such claim, action or proceeding.
- Outsell’s Indemnification Obligation. Outsell shall indemnify and hold harmless you, your officers, your directors, your employees, your agents, and your representatives from, and, at Outsell’s expense, shall defend you against any finally adjudicated claim, liability, loss, damage or expense, including reasonable legal fees and costs (collectively “Claim”), which Claim is brought against you by a third party and that arises as a result of any breach by Outsell and its partners of their representations and warranties or any other Terms of or obligations under this Agreement. Outsell, as appropriate, shall assume control of the defense of the Claim with counsel of their own choosing, respectively. You shall have the right, at your own expense, to participate in the defense of any Claim. In the defense of any such Claim arising under this Section, Outsell shall not, except with your written consent, enter into any settlement which adversely affects your rights or which does not include, as an unconditional term, a release granted to you of all liabilities in respect of such Claim. For purposes of clarity, in the event of any conflict between this Section 9.B. and Outsell’s Master Services Agreement (the “MSA”), the terms of the MSA shall prevail.
10. Intellectual Property Rights Ownership. “Intellectual Property Rights” means any and all rights belonging to Outsell and/or their respective partners and subcontractors and existing under patent law, copyright law, semiconductor chip protection law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information. As between you, Outsell and/or its respective partners and subcontractors, Outsell and/or its respective partners and subcontractors retain all their respective titles, interests, and ownership in the Service and the Supplementals included in the Service, and you understand and acknowledge that neither you nor your Authorized Users acquire any ownership in any Intellectual Property Rights regarding the Service or the Supplementals included in the Service under this Agreement.
- Limited Trademark License. You hereby grant to Outsell a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use your primary or house trademark(s) for the sole purpose of reproducing the trademark(s) in the Content and Service that Outsell provides to you under this Agreement and solely to the extent they are viewable by You as part of the Services.
11. Third-Party Components and Operating System Environments. You understand and agree that your use of any and all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items provided by you in conjunction with the Subscription and exercising your License are solely and exclusively your responsibility, and that Outsell has no responsibility for such third-party components, services, or your relationships with such third parties. Outsell does not represent or warrant that the Service is compatible with any specific third-party operating system hardware or software. You agree that you shall at all times comply with the lawful terms and conditions of your agreements with such third parties, and you acknowledge and agree that any failure on your part to comply with your obligations under such agreements which adversely affects your ability to access the Service shall be your sole responsibility. You acknowledge and agree that you are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate the Subscription.
12. Third-Party Beneficiaries. You understand, acknowledge, and agree that Outsell’s partners and sub-contractors whom provide services as part of this License, are third-party beneficiaries of this Agreement.
13. General Provisions. You may not assign, transfer, or license this Agreement, in whole or in part, without Outsell’s prior written consent. Except as otherwise provided, all notices, authorizations, and requests in connection with this Agreement shall be in writing. This Agreement contains your entire understanding with Outsell with respect to the subject matter and supersedes any and all prior oral or written proposals or understandings. No modification of this Agreement is binding unless in writing and signed by you and Outsell. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, and you hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in Minneapolis, Minnesota for resolving any disputes arising under this Agreement which cannot be resolved by negotiations between you and Outsell. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the Agreement shall remain in full force and effect as to the remaining provisions. Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between you and Outsell.
YOU EXPRESS YOUR UNDERSTANDING AND YOUR ACKNOWLEDGEMENT OF YOUR OBLIGATIONS UNDER THESE TERMS, AND YOUR CONSENT TO ABIDE BY ALL OF THE TERMS OF THIS AGREEMENT: