Terms of Service

TurnClick, Inc., a Delaware Corporation

Updated and Effective as of January 1, 2017

I. WELCOME

Welcome to www.turnclick.com (the “Site”), the website of TurnClick, Inc., (“TurnClick,” “we,” or “us”), an online information and communications service we provide pursuant to the following terms and conditions (“Terms of Service”).  These Terms of Service govern your access to and use of the Site, including any content, functionality and services offered on or through the Site, so please read them carefully.  Please do not use the Site if you do not agree to these terms.

II. TERMS OF USE

When you click to accept this Terms of Service Agreement (“Agreement”), or use or access any of TurnClick’s services, you agree to all the terms and conditions of the Agreement. If you are using TurnClick’s services on behalf of a company or other entity, then “Customer” or “you” includes that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

III. MODIFICATION

We may modify this Agreement at any time, and such modifications shall be effective immediately upon posting the modified terms and conditions on the Site. You agree to review the agreement periodically to be aware of such modifications, and your accessing or using the service constitutes your acceptance of the agreement as it appears at the time of your access or use. From time to time, we may offer website visitors the opportunity to participate in additional features or services through the Site. You may be required to enter into additional agreements or authorizations before you can access such features or services.

This Agreement was last updated on November 30, 2016.

IV. OVERVIEW OF TURNCLICK’S PLATFORM

TurnClick products allow you to customize your customers’ experience on your web and mobile platforms, to show content that matters most to your customers, and to generate unique URLs for each of your ad campaigns. TurnClick allows you to test virtually any element on your own web site, track goals, evaluate and find effective variations, and drive results. You accomplish this by installing TurnClick Code on a website or mobile application and then using TurnClick editing and configuration tools within the applicable TurnClick Service to manipulate, personalize, and test various characteristics of your site. You can then present edited and reconfigured variations of your Customer Properties to Visitors.

V. DEFINITIONS

Other terms are defined in other Sections of this Agreement.

VI. ACCOUNT REGISTRATION AND USE.

You may use TurnClick anonymously or you may register for a TurnClick Account.  When you register, you must provide accurate, current, complete information, and you are responsible for keeping that information up-to-date.  TurnClick grants an account to you as a specific Customer and you must not share your account with others. Whether using anonymously or as a registered user, your information will be governed by TurnClick’s Privacy Policy (https://www.turnclick.com/privacy).  By sharing your registration information with us you agree that TurnClick may send you notices, statements, and other information by e-mail or through your account.  You must limit use of your account to Authorized Users and you must ensure that you keep any user IDs, passwords and other access credentials (such as API tokens) for the TurnClick Service strictly confidential. If any Authorized User who works for you stops working for you, you must immediately terminate that person’s access to your account and any TurnClick Service. You are responsible for any and all actions taken using your or your users’ accounts, passwords or access credentials. You must notify TurnClick immediately of any breach of security or unauthorized use of its account.

VII.USE RIGHTS

A. Use of TurnClick Services. Whether by clicking on this terms of service and using TurnClick anonymously or by subscribing to TurnClick, TurnClick grants to you, subject to all terms and conditions of this Agreement, a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the TurnClick Service designated on your Order Form solely for your internal business purposes, and only in accordance with this Agreement all applicable Scope of Use descriptions. Your use of TurnClick Service may require you to install TurnClick Code on Customer Properties. In such cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant TurnClick Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed TurnClick Code with Customer Apps.

B. Use by Others. When you allow Authorized Users, their aggregate use will count towards any applicable Scope of Use restrictions.

C. General Restrictions. You must not (and must not allow any third party to): (i) rent, lease, copy, transfer, sublicense or provide access to the TurnClick Service to a third party (i.e. not an Authorized User); (ii) incorporate the TurnClick Service (or any portion thereof) into, or use it with or provide it to, any site, product or service, other than Customer Properties owned-and-operated by you; (iii) use the TurnClick Service (or any portion thereof) for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the TurnClick Service (which is deemed TurnClick’s Confidential Information); (v) modify or create a derivative work from the TurnClick Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any TurnClick Service (including TurnClick Code), except to the extent expressly permitted by applicable law and then only upon advance notice to TurnClick; (vii) break or circumvent any security measures or rate limits for TurnClick Services; (viii) distribute any portion of the TurnClick Service other than the TurnClick Code installed in Customer Apps as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the TurnClick Service including in any reports or output obtained from the TurnClick Service.

D. Beta Releases and Free Access Subscriptions. TurnClick may provide you with a TurnClick Service or TurnClick Code for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage TurnClick Services, TurnClick Code, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. TurnClick may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH TURNCLICK WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. TurnClick makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. TurnClick may terminate your right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in TurnClick’s sole discretion, without liability.

VIII. CUSTOMER DATA

A. Use of TurnClick Services. Subject to all terms and conditions of this Agreement, your subscription to TurnClick grants you worldwide, non-exclusive rights to TurnClick’s content including data you have provided. As between you and TurnClick, you retain all right, title and interest (including any intellectual property rights) in and to your Customer Data, all Customer Properties, and all content contained therein (excluding any TurnClick Technology). You grant to TurnClick a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary for TurnClick to provide services to you and as otherwise provided below. For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by you through the TurnClick Service.

B. Aggregate/Anonymous Data. You agree that TurnClick has the right to generate Aggregate/Anonymous Data from your data. You agree that this Aggregate/Anonymous Data is TurnClick Technology, which TurnClick may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve TurnClick’s products and services and to create and distribute reports and other materials). TurnClick agrees that it will not distribute Aggregate/Anonymous Data in a manner that personally identifies you or your visitors.

C. Security. TurnClick agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Customer Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Customer Data from unauthorized disclosure. Beyond its express promise to provide the security described in this Section, TurnClick takes no responsibility and assumes no liability for any Customer Data.

D. Storage. TurnClick does not provide an archiving service and reserves the right to delete Content no longer in active use. TurnClick expressly disclaims all other obligations with respect to storage.

IX. CUSTOMER OBLIGATIONS

A. You agree to: (i) maintain a legally-adequate privacy policy on your Customer Properties and provide all required disclosures to your Visitors; (ii) obtain all necessary rights, releases and consents to allow your own Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant TurnClick the rights herein; (iii) not submit, collect or use any Regulated Data to or with the TurnClick Service (including from Third Party Products) except where expressly permitted; (iv) comply with any third party terms applicable to any Customer Apps (such as app store terms) and to Third Party Products used in connection with the TurnClick Service; and (v) not take any action that would cause TurnClick, the TurnClick Service or the TurnClick Code to become subject to any third party terms (including open source license terms). You represent and warrant that your Customer Properties and your collection, use, and disclosure of Customer Data will not violate third party rights, including intellectual property, privacy, and publicity rights. If you receive any take down requests or infringement notices related to Customer Data or to your use of Third Party Products, you must promptly stop using these items with the TurnClick Services and notify TurnClick.

B. In particular, you agree not to:

  1. Post or transmit abusive messages, defamatory, libelous, false or misleading statements, hate speech, or messages that incite or threaten violence;
  2. Transmit spam, chain letters, or other unsolicited email;
  3. Impersonate another person, misrepresent your affiliation with another person or entity, engage in fraud, or hide or attempt to hide your identity;
  4. Access any unauthorized part of the TurnClick Platform;
  5. Access any part of the TurnClick Platform, or any content or data therein, through any technology or means other than those provided or authorized by TurnClick (including without limitation through technologies such as automated or non-automated “scraping,” “robots,” “spiders,” “offline readers,” or any system that sends more request messages to the TurnClick servers than a human can reasonably produce in the same period of time);
  6. Interfere with the normal functioning, integrity or operation of the TurnClick Platform;
  7. Upload or transmit invalid data, viruses, worms, harmful code, malware, or other software agents;
  8. Decipher or decrypt transmissions, circumvent any access, authentication or copy restrictions of, or otherwise attempt to compromise the security of the TurnClick Platform (including another user’s account);
  9. Attempt to probe, scan or test the vulnerability of any part of the TurnClick Platform without proper authorization;
  10. Attempt to modify, or gain unauthorized use of or access to, another user's account(s), website(s), application(s), system(s), equipment or data;
  11. Collect or harvest any personally identifiable information, including account names, from any other user’s account;
  12. Use the TurnClick Service or other parts of the TurnClick Platform in violation of any applicable law or regulation, including privacy laws in applicable jurisdictions; or
  13. Upload, use or transmit any content, data or materials that violate applicable laws or regulations.

Without limiting any other remedies available to it, TurnClick may in its sole discretion suspend or terminate access to the TurnClick Platform for violations of this Terms of Service Agreement.

X. SERVICES

TurnClick makes available web-based support through its website (currently available at http://help.turnclick.com).

XI.    FEES AND PAYMENT

You agree to pay all fees in U.S. dollars within thirty (30) days of any invoice date, unless a different currency or payment period is specified in the applicable Order Form. TurnClick’s fees are exclusive of all taxes, and you must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of TurnClick. You will make tax payments to TurnClick to the extent amounts are included in TurnClick’s invoices. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes TurnClick to charge fees and other amounts automatically to Customer’s credit card without invoice. Unless otherwise specified in an Order Form or other documentation, such charges typically occur monthly in advance, though overage fees (if any) may be charged in arrears. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.

XII. TERM AND TERMINATION

A. Term. This Agreement is effective until all Subscription Terms for the TurnClick Service(s) have expired or are terminated as expressly permitted herein.

B. Subscription Term and Renewals. By placing an Order Form for purchase of a TurnClick Service, you are agreeing to pay applicable fees (if any) for the entire Subscription Term, which term is specified in the Order Form. You cannot cancel or terminate a Subscription Term except as expressly permitted by Section XII.D (Termination for Cause). The Subscription Term for each non-anonymous subscription will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when you first obtain access to the TurnClick Service. Pricing for any Subscription Term renewal, new Order Form or Order Form change will be at TurnClick’s then-applicable rates.

C. Suspension of Service. TurnClick may suspend your access to the TurnClick Service(s) if: (i) your account is overdue or (ii) you have exceeded your Scope of Use limits. TurnClick may also suspend your access to the TurnClick Service(s), remove Customer Data or disable Third Party Products if it determines that: (a) you have breached Sections VII (Use Rights) or IX (Customer Obligations) or (b) suspension is necessary to prevent harm or liability to other customers or third parties or to preserve the security, stability, availability or integrity of the TurnClick Service. TurnClick will bear no liability for taking action as permitted above. For avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period. However, unless this Agreement has been terminated, TurnClick will cooperate with you to restore access to the TurnClick Service once it verifies that you have resolved the condition requiring suspension.

D. Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). TurnClick may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections VII (Use Rights) or IX (Customer Obligations) or for repeated violations of this Agreement.

E. Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form: (i) your license rights shall terminate and you must immediately cease use of the applicable TurnClick Service(s) (including any related TurnClick Technology), cease distributing any TurnClick Code installed on your Customer Properties, and delete (or, at TurnClick’s request, return) any and all copies of the TurnClick Code, any TurnClick documentation, passwords or access codes and any other TurnClick Confidential Information in Customer’s possession, custody or control and (ii) your right to access any Customer Data in the applicable TurnClick Service will cease and TurnClick may delete any such data in its possession at any time. If TurnClick terminates this Agreement for cause as provided in Section XII.D. (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by you. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

F.  Survival. The following Sections survive any expiration or termination of this Agreement: V (Definitions); VI (Account Registration and Use); C. (General Restrictions); VII.D. (Beta Releases and Free Access Subscriptions); VIII (Customer Data and Aggregate/Anonymous Data); XI (Fees and Payment); XII (Term and Termination); XIII (Confidential Information); XIV (TurnClick Technology); XV (Indemnification); XVI (Disclaimers); XVII (Limitations of Liability); XVIII (Third-Party Products and Integrations); and XXI (General).

XIII. CONFIDENTIAL INFORMATION

A. Obligation of Confidentiality. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents or contractors having a legitimate need to know (which, for TurnClick, includes the subcontractors referenced in Section XXI.D.), provided that such party remains responsible for any recipient’s compliance with the terms of this Section XIII and these recipients are bound to confidentiality obligations no less protective than this Section.

B. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

C. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

XIV. TURNCLICK TECHNOLOGY

A. Ownership and Updates. This is a subscription agreement for access to and use of the TurnClick Service. You acknowledge that you are obtaining only a limited right to use the TurnClick Service and that irrespective of any use of the words “purchase,” “sale,” or similar terms, no ownership rights are transferred to You under this Agreement. You agree that TurnClick (or its suppliers) retains all rights, title, and interest (including all intellectual property rights) in and to all TurnClick Technology (which is deemed TurnClick’s Confidential Information) and reserves any licenses not specifically granted herein. Other than the TurnClick Code, the TurnClick Service is offered as an on-line, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any TurnClick Service and that TurnClick at its option may make updates, bug fixes, modifications or improvements to the TurnClick Service from time-to-time.

B. Feedback. If you elect to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to TurnClick (collectively, “Feedback”), Customer hereby grants TurnClick a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits TurnClick’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

XV. INDEMNIFICATION

Customer will indemnify and hold TurnClick harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to any Customer Data, Customer Property (including services or products provided through such property), or breach or alleged breach of Section IX (Customer Obligations). Customer also agrees to defend TurnClick against these claims at TurnClick’s request, but TurnClick may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Customer must not settle any claim without TurnClick’s prior written consent if the settlement does not fully release TurnClick from liability or would require TurnClick to admit fault, pay any amounts or take or refrain from taking any action.

XVI. DISCLAIMERS

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.

YOUR USE OF THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TURNCLICK NOR ANY PERSON ASSOCIATED WITH TURNCLICK MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER TURNCLICK NOR ANYONE ASSOCIATED WITH TURNCLICK REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  TURNCLICK WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR CUSTOMER PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-TURNCLICK SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM A CUSTOMER IN BREACH FO THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON TURNCLICK TECHNOLOGY OR TURNCLICK’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES)

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

XVI. LIMITATION OF LIABILITY

IN NO EVENT WILL TURNCLICK, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  BUT IN NO EVENT SHALL TURNCLICK’S TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO TURNCLICK FOR THE APPLICABLE TURNCLICK SERVICE OR RELATED SERVICES ACCESSED BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  FOR FREE ACCESS USAGE, TURNCLICK’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY ($50) DOLLARS.  TO THE EXTENT ANY OF THE ABOVE LIMIATIONS OF LIABILITY ARE PROHIBITED BY LAW, THE LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT POSSIBLE.

XVIII. THIRD PARTY PRODUCTS AND INTEGRATIONS

If Customer uses Third Party Products in connection with the TurnClick Services, those products may make Third Party Content available to Customer and may access Customer’s instance of the TurnClick Service, including Customer Data. TurnClick does not warrant or support Third Party Products or Third Party Content (whether or not these items are designated by TurnClick as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the TurnClick Services, including their modification, deletion, disclosure or collection of Customer Data. TurnClick is not responsible in any way for Customer Data once it is transmitted, copied or removed from the TurnClick Services.

XIX. INTENDED FOR USERS OVER AGE 18

The Site is intended for use by individuals 18 years of age and older.  This Site is not designed for use by children under age 18.  If you are under the age of 18, you should get the assistance of a parent or guardian to use this Site.

XX. INTELLECTUAL PROPERTY

The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by TurnClick, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site, except as follows:

You must not:

XXI. GENERAL

A. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that TurnClick may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section XXI will be null and void.

B. Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to TurnClick at the following address, 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, Zip Code 19904 and include “Attn. TurnClick, Inc., Legal Department” in the subject line. TurnClick may send notices to the e-mail addresses on Customer’s account or, at TurnClick’s option, to Customer’s last-known postal address. TurnClick may also provide operational notices regarding the TurnClick Service or other business-related notices through conspicuous posting of such notice on TurnClick’s website or the TurnClick Service. Each party hereby consents to receipt of electronic notices. TurnClick is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

C. Publicity. Unless otherwise specified in the applicable Order Form, TurnClick may use Customer’s name, logo and marks (including marks on Customer Properties) to identify Customer as an TurnClick customer on TurnClick’s website and other marketing materials.

D. Subcontractors. TurnClick may use subcontractors and permit them to exercise the rights granted to TurnClick in order to provide the TurnClick Service and related services under this Agreement. These subcontractors may include, for example, TurnClick’s hosted service and CDN providers. However, subject to all terms and conditions herein, TurnClick will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the TurnClick Services if and as required under this Agreement.

E. Subpoenas. Nothing in this Agreement prevents TurnClick from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but TurnClick will use commercially reasonable efforts to notify Customer where permitted to do so.

F. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

G. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

H. Export. Customer is responsible for obtaining any required export or import authorizations for use of the TurnClick Services. Customer represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the TurnClick Service in violation of any U.S. export embargo, prohibition or restriction.

I. Amendments; Waivers. TurnClick may update or modify any aspect of this Agreement from time to time. If TurnClick modifies the Agreement during Customer’s paid Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal, except that: (i) changes to any policies referenced herein will take effect thirty (30) days from the date of posting; (ii) if TurnClick launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance; and (iii) any updated or modified Agreement will take effect immediately for Free Access Subscriptions or if Customer accepts new Order Forms or Order Form changes following the modification. Customer may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Agreement. If Customer does not agree to the updated Agreement after it takes effect, Customer will no longer have the right to use the TurnClick Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

J. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

K. No Third Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form and not any affiliated entities.

L. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

 M. Entire Agreement. This Agreement constitutes the sole and entire agreement between you and TurnClick with respect to the Site and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.

N. Governing Law; Jurisdiction and Venue. All matters relating to the Site and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of, or related to, this Agreement or the Site shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Alameda County, California. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

O. Government Use. The TurnClick Services are based upon commercial computer software. If the user or licensee of an TurnClick Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the TurnClick Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The TurnClick Services were developed fully at private expense. All other use is prohibited.

XXII. COMMENTS

All feedback, comments, requests for technical support and other communications relating to this Site should be directed to support@turnclick.com.