WELCOME TO ADESPRESSO. PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (as defined below) OFFERED BY AdEspresso, INC. (“adespresso”). by ACCESSING OR using the SERVICES in any manner, you (“USER”) agree that you have read and agree to be bound by and a party to the terms and conditions of this agreement to the exclusion of all other terms. if the terms of this agreement are considered an offer, acceptance is expressly limited to these terms. if you are ACCEPTING this agreement on behalf of an organization, you represent that you have authority to do so. IF YOU HAVE ANY QUESTIONS, COMMENTS, OR CONCERNS REGARDING THESE TERMS OR THE SERVICES, PLEASE CONTACT US AT INFO@ADESPRESSO.COM, +1 (415) 688-9467, 301 King Street, 94158, San Francisco, CA, USA.
Content means any content (including without limitation any information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services) User or any of its salespersons, employees, contractors, or agents adds, creates, submits, distributes, uploads, posts, transmits, or otherwise disseminates (or is added, created, uploaded, submitted, distributed, or posted on behalf of User) through the Website.
Effective Date means the date User accepts this Agreement.
Service(s) means access to the features provided by AdEspresso. The Services consist of the features described at https://adespresso.com/pricing [This is not complete and not always updated with the latest features, can we keep it more generic?].
Website means the adespresso.com website and domain name and all other websites and domain names affiliated with AdEspresso and any other linked pages, features, content, or application services (including without limitation mobile application services) offered in connection therewith by AdEspresso.
2. Service; PROPRIETARY RIGHTS.
2.1 Service. Subject to User’s compliance with all terms and conditions of this Agreement, AdEspresso will make the Service available to User as of the Effective Date.
2.2 Service License. Subject to User’s compliance with all terms and conditions in this Agreement, AdEspresso grants User for the term of this Agreement a limited, personal, nonexclusive, non-sublicensable, royalty-free, nontransferable (except as provided in this Agreement) license to access and use the Website, only in connection with the Services. Except as expressly and unambiguously granted herein, no right or license is granted.
2.3 Content License. User hereby grants AdEspresso a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and transferable right to display the Content on the Website and Facebook advertising Network. AdEspresso reserves the right to (a) remove any Content at any time, for any reason, including, without limitation, if it believes, in its sole discretion, that such Content violates this Agreement in any manner and (b) reformat the Content in order to make it compatible with the Service. User represents, warrants, and covenants that it (x) has all necessary rights to grant the foregoing license, and to use, and allow AdEspresso to use the name, likeness, and identifying information of any identifiable person in the Content in the manner contemplated by this Agreement and (y) that it will pay all royalties and other amounts owed to any third party due to its use of the Content, if any. AdEspresso reserves the right to change the features offered as part of the Services, or the features offered for any Subscription Level (as defined below), at any time, upon thirty (30) days’ notice to User.
2.4 Feedback. User may, at its discretion, provide feedback, suggestions, improvements, enhancements, and/or feature requests to AdEspresso with respect to its use of the Service (“Feedback”). User shall and hereby does assign all right, title, and interest in and to Feedback to AdEspresso.
2.5 Use of Name. In addition to any rights granted with respect to Content under Section 2.3, AdEspresso may use User’s name and logo for the purposes of identifying User as an AdEspresso customer enrolled in AdEspresso for User.
3.1 User shall not directly or indirectly (a) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Service (except to the extent that such a prohibition would be prohibited by law), (b) use the Service in any manner that, or contribute any Content that, infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party, (c) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any part of the Service, (d) use the Service in any manner that, or contribute any Content that, is harmful, fraudulent, deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable, or that violates any law, statute, ordinance, or regulation, (e) contribute any Content that contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program, or (f) permit any third party to engage in any of the foregoing proscribed acts.
3.2 All Content, whether publicly posted or privately transmitted, is the sole responsibility of the User who originated such Content. User represents that all Content provided by User is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. Further, User acknowledges that all Content accessed by User using the Services is at their own risk and User will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
3.3 You agree and acknowledge that the Services as delivered to you contain a disclaimer and notification that, among other things, limits AdEspresso’s and associated third party sites’ (such as Facebook) liability to campaign participants (“Campaign Disclaimer”). You agree you will not obfuscate or remove any Campaign Disclaimer from the campaign’s page without AdEspresso’s knowledge and consent.
3.5 It is your responsibility to guarantee the lawful operation of each of your campaigns, which includes establishing and administering official rules, offer terms, and eligibility requirements (including but limited to age and residency restrictions), winner selection, and regulation compliance governing your campaigns and all campaign prizes or rewards (including registration and obtaining necessary regulatory approvals). Furthermore, you shall bear all prize procurement and delivery costs, including any associated insurance, taxes, and any other fees associated with any campaign prizes and rewards. Additionally, you agree to comply with your privacy policies and all third party site campaign rules or guidelines governing the administration and operation of campaigns. You also understand and agree that AdEspresso may also be subject to third party site rules or guidelines, which may in turn limit or condition some features, functions, workflow, look and feel, and/or content that you may use on your campaigns. Finally, you may not use AdEspresso’s name, trademarks, or trade names in connection with a campaign.
4. EMPLOYEES AND CONTRACTORS
4.1 User shall ensure that its salespersons, employees, contractors and agents comply with all of User’s obligations under this Agreement, and shall be responsible and liable for their acts and omissions in breach thereof.
4.2 User shall ensure that only its salespersons, employees, contractors and agents for whom AdEspresso has created authorized accounts will use the Services.
Each party (the “Receiving Party”) may receive business, technical, financial or other proprietary information, materials, and/or ideas from the other party (the “Disclosing Party”) during the term of this Agreement (“Confidential Information”). AdEspresso’s Confidential Information shall include, without limitation, details about the Services and its features and about potential pricing of paid services and the terms of this Agreement. The Receiving Party agrees to hold in confidence and not use (except to exercise its rights or fulfill its obligations hereunder) or disclose the Disclosing Party’s Confidential Information. Confidential Information shall not include: (a) information that is or becomes publicly available through no fault of Receiving Party, (b) was in Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party by a third party without restriction, or (d) was independently developed by Receiving Party without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures of Disclosing Party’s Confidential Information required by law or court order provided it uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order for the Confidential Information.
User will indemnify and hold AdEspresso, its parents, subsidiaries, affiliates, officers, and employees harmless (including without limitation from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand due to or arising out of User’s or its salespersons’, employees’, subcontractors’, or agents’ breach of this Agreement.
AdEspresso offers email-based and phone-based support based on the subscription plan. User may contact the support desk at firstname.lastname@example.org and +1 (844) 233-7773. AdEspresso will use commercially reasonable efforts to assist User with any problems User may be having with the Services, but AdEspresso does not make any promises regarding response times, that it will be able to fix any such problems, or that the Services will be uninterrupted or error-free. Any suggestions by AdEspresso regarding use of the Services shall not be construed as a warranty.
8. PAYMENT; TAXES.
8.2 User may chooses to upgrade to a more-expensive or downgrade to a less expensive subscription level at any time during the term of this Agreement. Upgrade/downgrade pricing may be found on the Order webpage https://adespresso.com/pricing
8.3 If this Agreement is terminated by either party for any reason other than User’s breach, the user’s acount will remain active until the end of the current billing cycle. AdEspresso will then stop charging the user and the account will be terminated within 5 days from the end of the billing cycle.
8.4 User shall bear and be responsible for any applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) relating to the subject matter hereunder, excluding taxes based upon AdEspresso’s net income.
9. Warranty Disclaimer.
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NEITHER ADESPRESSO NOR ITS SUPPLIERS WARRANTS THAT THE SERVICE WILL MEET BUSINESS’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, ADESPRESSO HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
10. Limitation of Liability.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, In no event shall ADESPRESSO (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICE, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, AND TRADING AND INVESTMENT LOSSES, OR (D) damages, IN THE AGGREGATE, in excess of the greater of $1000 or the fees paid by User hereunder in the SIX (6) MONTHS preceding the applicable claim, EVEN IF ADESPRESSO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. Term and Termination.
11.1 Term. This Agreement shall commence on the Effective Date, and shall continue in effect unless terminated as permitted herein.
A. Except as otherwise provided in Section 8.5, this Agreement may be terminated by either party at any time without cause with thirty (30) days prior written notice.
B. AdEspresso may immediately terminate this Agreement, and/or suspend any and all features of the Service, and/or User’s access thereto, without prior notice or liability, if User (or any of its salespersons, employees, subcontractors or agents) breaches any of the terms or conditions of this Agreement.
11.3 Effects of Termination. Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that the following provisions shall survive: Section 2.3, the second sentence of Section 2.4, Sections 4.1, 5, 6, and 8-12 (inclusive).
12. General Provisions.
12.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Unless waived by AdEspresso in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Francisco, California, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
12.3 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified above, or at such other address designated in a subsequent notice, provided that notices to User may be provided by email or at login or by other means reasonably likely to provide actual notice to User. All notices shall be in English, effective upon receipt.
12.4 Assignment. User shall not assign this Agreement without AdEspresso’s consent. AdEspresso may freely assign or transfer this Agreement (in whole or in part) without consent.
12.5 No Agency. Notwithstanding anything else, the parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture.
12.6 Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.
12.8 Digital Millennium Copyright Act. You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like AdEspresso, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here. To learn more about the DMCA, click here.