Avenue Right
Master Subscription Agreement
AVENUE RIGHT LLC TERMS OF USE:
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF AVENUE RIGHT’S ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
1. License Grant & Expression
Avenue Right LLC hereby grants you a non-exclusive, non-transferable, right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Avenue Right LLC and its licensors.
You may not access the Service if you are a direct competitor of Avenue Right LLC, except with Avenue Right LLC's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the Intellectual Property Rights, the Avenue Right LLC Technology, or the Content (such property is referred to in this Section 1 as the “Controlled Property”) in any way; (ii) modify or make derivative works based upon the Controlled Property; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Controlled Property in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Controlled Property, or (c) copy any ideas, features, functions or graphics of the Controlled Property. User accounts cannot be shared or used by more than one individual and may not be reassigned Any new User of the Service must sign up for an individual account.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
2. Your Responsibilities
You are responsible for all activity occurring under your User accounts 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, communications and the transmission of technical or personal data. You shall: (i) notify Avenue Right LLC immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Avenue Right LLC immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Avenue Right LLC user or provide false identity information to gain access to or use the Service.
3. Account Information and Data
You, not Avenue Right LLC, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all “Customer Data”. Avenue Right LLC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Avenue Right LLC will make available to you a file of the Customer Data within 30 days of termination if you so request in writing at the time of termination. Avenue Right LLC reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Avenue Right LLC shall have no obligation to maintain or forward any Customer Data. Avenue Right LLC reserves the right to use any Customer Data provided via the Service.
4. Intellectual Property Ownership
Avenue Right LLC alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Avenue Right LLC Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Avenue Right LLC Technology or the Intellectual Property Rights owned by Avenue Right LLC. The Avenue Right LLC name, the Avenue Right LLC logo, and the product names associated with the Service are trademarks of Avenue Right LLC or third parties, and no right or license is granted to use them.
5. Third Party Interactions and Transactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of media sellers offering their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity and related transactions, is solely between you and the applicable third-party. Avenue Right LLC and its licensors are not parties to any such activity or transactions, make no warranties respecting the goods and/or services procured by you through the Service, and shall have no liability, obligation or responsibility for any such transactions, correspondence, purchase or promotion between you and any such third-party. Avenue Right LLC may provide links to Internet sites for your convenience; provided, that in no event shall Avenue Right LLC or its licensors be responsible for any content, products, or other materials on or available from such sites. Avenue Right LLC provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary products or services may require your agreement to additional or different license or other terms prior to your use of or access to such products or services.
6. Charges and Payment of Fees
You shall pay all fees or charges to your Avenue Right account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made through the Online Order Center. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You must provide Avenue Right LLC with valid credit card or approved purchase order information as a condition to signing up for the Service. Avenue Right LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
Payment of fees to third-party media sellers for placement of media purchases are made solely between you and the applicable third-party and will be subject to the payment terms and conditions of any such third-party. Avenue Right, LLC has no obligations (financial or otherwise) respecting the media purchase transactions executed by you (see Section 5 above).
7. Billing and Renewal
Avenue Right LLC will automatically renew and bill your credit card or issue an invoice to you upon the expiration of the term of your subscription to the Service. The renewal charge will be equal to the then-current pricing structure.
You agree to provide Avenue Right LLC with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and account Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Avenue Right LLC reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Your failure to contact us in writing setting forth any objections to our invoices within the specified timeframe shall constitutue your acceptance of the invoice.
8. Non-Payment and Suspension
In addition to any other rights granted to Avenue Right LLC herein, Avenue Right LLC reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for account access during any period of suspension. If you or Avenue Right LLC initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Avenue Right LLC may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Avenue Right LLC reserves the right to impose a reconnection fee and/or deposit payment in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Avenue Right LLC has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
9. Termination upon Expiration
This Agreement commences on the Effective Date in which any account user chooses the “I Accept” option upon use of the Service. The Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Avenue Right LLC's then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Avenue Right LLC will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Avenue Right LLC has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
10. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Avenue Right LLC Technology or Service will be deemed a material breach of this Agreement. Avenue Right LLC, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Avenue Right LLC may terminate a free account at any time in its sole discretion. You agree and acknowledge that Avenue Right LLC has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
11. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Avenue Right LLC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform in accordance with the Avenue Right LLC product specifications under normal use and circumstances. Avenue Right LLC makes no representations or warranties respecting any products/services that you purchase utilizing the Service. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
12. Indemnification
You shall indemnify and hold Avenue Right LLC, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; (iii) any claim arising out of a transaction between you and a third party, which transaction was consummated utilizing the Service; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Avenue Right LLC (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Avenue Right LLC of all liability and such settlement does not affect Avenue Right LLC's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Avenue Right LLC shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Avenue Right LLC of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Avenue Right LLC; provided that you (a) promptly give written notice of the claim to Avenue Right LLC; (b) give Avenue Right LLC sole control of the defense and settlement of the claim (provided that Avenue Right LLC may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Avenue Right LLC all available information and assistance; and (d) have not compromised or settled such claim. Avenue Right LLC shall have no indemnification obligation, and you shall indemnify Avenue Right LLC pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, or business process(s).
13. Disclaimer of Warranties
AVENUE RIGHT LLC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. AVENUE RIGHT LLC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA AND CONTENT WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU FROM A THIRD PARTY THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY AVENUE RIGHT LLC AND ITS LICENSORS.
14. Internet Delays
AVENUE RIGHT LLC'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AVENUE RIGHT LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
17. Notice
Avenue Right LLC may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Avenue Right LLC's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Avenue Right LLC's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Avenue Right LLC (such notice shall be deemed given when received by Avenue Right LLC) at any time by any of the following: letter sent by confirmed facsimile to Avenue Right LLC at the following fax number: (701) 499-3610; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Avenue Right LLC at the following addresses: Avenue Right LLC, 1854 NDSU Research Circle N., Suite 22, Fargo, ND 58102.
18. Modification to Terms
Avenue Right LLC reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
19. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Avenue Right LLC. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Avenue Right LLC directly or indirectly owning or controlling 50% or more of you shall entitle Avenue Right LLC to terminate this Agreement for cause immediately upon written notice. Avenue Right LLC may assign this Agreement without your consent to (i) a parent, subsidiary, or affiliate of Avenue Right; (ii) an acquirer of the assets (whether in whole or in part) of Avenue Right; and (iii) any successor entity to Avenue Right resulting from merger, legal conversion, reorganization, consolidation, or otherwise.
20. General
This Agreement shall be governed by North Dakota law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Fargo, North Dakota. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Avenue Right LLC as a result of this agreement or use of the Service. The failure of Avenue Right LLC to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Avenue Right LLC in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Avenue Right LLC and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
21. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the Avenue Right LLC website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Avenue Right LLC from time to time in its sole discretion;
"Content" means the audio and visual information, documents, software, products and services contained in the course of using the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service;
"Initial Term" means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form or via the Online Order Center;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Account Administrator(s)" means those Users designated by you who are authorized to purchase Service subscriptions online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;
"Subscription Term(s)" means the period(s) during which account Users are permitted to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
"Online Order Center" means Avenue Right LLC's online application that allows the Account Administrator designated by you to, among other things, purchase subscription Services to Avenue Right and add additional Users to the Service;
"Avenue Right LLC" means collectively Avenue Right LLC, inc., a Delaware corporation, having its principal place of business at 1854 NDSU Research Circle N., Suite 22, Fargo, ND 58102;
"Avenue Right LLC Technology" means all of Avenue Right LLC's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Avenue Right LLC in providing the Service;
"Service(s)" means the specific edition of Avenue Right LLC's online media exchange platform, billing, data analysis, or other corporate media services identified during the ordering process, developed, operated, and maintained by Avenue Right LLC, accessible via http://www.AvenueRight.net or another designated web site or IP address, or ancillary online or offline products and services provided to you by Avenue Right LLC, to which you are being granted access under this Agreement;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Avenue Right LLC at your request).