Last Modified: February 7, 2017
These General Terms, the Acceptable Use Rules, the Payment Terms, (collectively, the “AdEspresso Terms”) govern access to and use of any websites, products or services (collectively “Services“) offered by AdEspresso Inc. (“AdEspresso” or “we“).
OUR SERVICES ARE NOT FOR CONSUMERS OR PRIVATE OR HOUSEHOLD PURPOSES, ONLY FOR BUSINESSES AND PROFESSIONAL USERS. YOU MUST NOT ACCESS OR USE OUR SERVICES, UNLESS (A) YOU ARE ACTING IN A BUSINESS OR PROFESSIONAL CAPACITY, (B) YOU ACCEPT THE ADESPRESSO TERMS ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR ORGANIZATION, AND (C) IF YOU ARE ACTING ON BEHALF OF YOUR ORGANIZATION, YOU ARE AUTHORIZED TO DO SO. IF YOU ACCESS OR USE ANY OF OUR SERVICES, THE ADESPRESSO TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND, IF APPLICABLE, YOUR ORGANIZATION (COLLECTIVELY REFERRED TO AS “YOU” HEREINAFTER) AND ADESPRESSO.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 12 BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND ADESPRESSO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
1. General and Service-Specific Terms, Changes
1.2 Changes. We reserve the right to change our Services, pricing, any AdEspresso Terms, notices (such as our Privacy Statement and Copyright Notice) and any other terms and conditions, at our sole discretion, with or without prior notice. If the change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes to our Services, pricing, AdEspresso Terms, notices, and any other terms and conditions will apply to you.
2. Your Rights and Obligations
2.1 Access to Services. We grant you a non-exclusive, non-transferable, revocable, limited, personal right to access our Services. We do not authorize other use or access, including, without limitation, by robots, spiders, crawlers and scraping technologies. You are responsible for setting your own username and password (“Login Information”) and should not allow any third party to access or use your Login Information. You are responsible for all individuals that access the Services through your Login Information (“Authorized Users”). You and your Authorized Users may use the Services only for your own business, not to access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services.
2.2 Facebook or Instagram Account. We provide you with a technical application which allows you to publish and manage ads on www.facebook.com (“Facebook”) and www.instagram.com (“Instagram”). Therefore, in order to use our Services, you must be a registered Facebook or Instagram user and have an advertising account with Facebook or Instagram.
2.3 Ads Content. You are solely responsible for all Ads Content that you or your Authorized Users upload, publish, display, link to, or otherwise make available via the Services. We have the right but no obligation to review, filter, block, or remove any Ads Content that you publish or make available via our Services. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ADS CONTENT POSTED ON OR MADE AVAILABLE THROUGH OUR SERVICES BY YOU OR ANY OTHER THIRD PARTY. “Ads Content” includes all information, text, images, photos, videos, audio, documents and other content in any media and format which is provided or made available to us in connection with your use of the Services.
3. Third Party Content and Services
3.1 We are not responsible for any services provided by Facebook, Instagram (the “Social Platforms”), or for any other services, information or content accessed or purchased through AdEspresso, which you may be able to access, use or connect to with our Services (together, the “Third-Party Services“). If you access a Third-Party Service through us, you do so at your own risk. When accessing Facebook or Instagram services, you are responsible to comply with all of their terms, conditions, policies and guidelines which they may impose on their users including those published at https://www.facebook.com/terms.php, and https://www.facebook.com/policies/ads/ (the “Third-Party Terms”). You remain responsible for the payment of the ads purchased through our Services directly to the Social Platforms.
3.2 You understand that we have the right but no obligation to preview, verify, flag, modify Ads Content and that you must bear all risks associated with the publishing of ads on the Social Platforms. You also agree that Services interoperate with Social Platforms, and that our Services are highly dependent on the availability of the Social Platforms. If at any time the Social Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Social Platforms as a result of a malfunction in our Services.
4. Confidentiality and Data Protection
4.1 Confidentiality. If we share non-public information about our Services, you must keep it confidential and use reasonable security measures to prevent disclosure or access by unauthorized persons.
4.2 Personal Data. We will not use or control any of the personal data that you process with our Services, we merely offer you tools with which you can process data. You must comply with all applicable data privacy and data protection laws. As per our Acceptable Use Rules, our Services shall not be used to process any sensitive personal information as defined in the Data Protection Directive 95/46.
5. Intellectual Property
5.1 Ads Content. You retain all right, title and interest to your Ads Content which you may upload to or with our Services. We will not use your Ads Content except for purposes of providing, supporting and improving our Services and in full compliance with all AdEspresso Terms.
5.2 Feedback. You may from time to time provide suggestions, comments or other feedback to AdEspresso with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. Notwithstanding the foregoing, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
5.3 Services. We retain all right, title, and interest in and to the Services.
6. Free Trials, Charges and Payment Terms
You must timely pay all applicable fees based on our Payment Terms, except with respect to Services that we expressly offer free of charge. If you sign up for a free trial period for a Service that is subject to charges, we may require you to provide us with a valid credit card or other payment method and start charging you automatically on the first day after the free trial is over, unless you cancel your account before the end of the free trial period. You remain responsible at all times for the direct payment of the ads purchased through our Services to Facebook or Instagram.
The AdEspresso Terms shall remain in effect until either of us terminate them in accordance with this Section 7.
7.1 Cancellation of Services. You can cancel your Services at any time by following the cancellation procedure published here. If you cancel paid Services, you must pay throughout any agreed term and you are not entitled to any refunds.
7.2 Cancellation by AdEspresso. We may also cancel your Services, at our sole discretion, for any reason, without notice at any time. If you prepaid for Services for a specified term, and we terminate your Services under this section, we shall offer a pro rata refund of the prepaid fees.
7.3 Termination for Cause. We may both terminate the AdEspresso Terms, effective immediately, if the other party commits a material breach of the AdEspresso Terms and fails to remedy such breach within thirty (30) days of receiving a written request to cure. Additionally, we may suspend or terminate your access to the Services if you violate any Acceptable Use Rules or use the Services in a way that creates risk or possible legal exposure to us, other customers or others. If you terminate the AdEspresso Terms for cause, we will refund any prepaid fees as of the termination date.
7.4 Effects of Termination. Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these AdEspresso Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the AdEspresso Terms that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of the AdEspresso Terms.
8. Warranty Disclaimer
8.1 No Express Warranties. WE OFFER THE SERVICES “AS IS,” WITHOUT ANY EXPRESS WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, UNLESS WE EXPRESSLY AGREE TO A LIMITED WARRANTY WITH A SPECIFIC REFERENCE TO THIS SECTION 8.1.
8.2 Disclaimers. YOU USE ALL SERVICES AT YOUR OWN RISK. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OUR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DISCLAIM ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES (INCLUDING FACEBOOK OR INSTAGRAM) OR ACTIVITIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR SOCIAL PLATFORMS, ANY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN (INCLUDING ADS CONTENT). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE ADESPRESSO TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
9. Sole Remedy
IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THE ADESPRESSO TERMS IN ACCORDANCE WITH SECTION 7.3, AS APPLICABLE. SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.
You shall defend, indemnify, and hold harmless AdEspresso, and our affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection with or arising out of a claim (a) alleging that your Ads Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (b) relating to, or arising from, Ads Content or your breach of any AdEspresso Terms or (c) relating to, or arising from, your use of any Third-Party Services (including your breach of the Third-Party Terms).
11. Limitation of Liability
11.1 CAP. OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE GREATER OF (A) THE FEES WE RECEIVED FROM YOU FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) USD $500.
11.2 EXCLUSION. WE SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THE ADESPRESSO TERMS. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
11.3 SCOPE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL (A) ALSO BENEFIT OUR AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS, (B) APPLY TO ANY CLAIMS BROUGHT BASED ON ANY CAUSE OF ACTION, INCLUDING BREACH OF CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY, AND (C) NOT APPLY IF YOU CAN PROVE THAT: (I) OUR NEGLIGENCE CAUSED DEATH OR PHYSICAL INJURY; (II) WE CAUSED DAMAGES INTENTIONALLY OR WITH WILLFUL MISCONDUCT; OR (III) APPLICABLE LAW DOES NOT ALLOW A LIMITATION AS CONTEMPLATED IN THE ADESPRESSO TERMS (IN WHICH CASE THE LIMITATIONS OF LIABILITY IN THE ADESPRESSO TERMS SHALL BE REDUCED TO THE MAXIMUM LIMITATION THAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW).
11.4 BASIS OF BARGAIN. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11 IS TO ALLOCATE THE RISKS UNDER THESE ADESPRESSO TERMS BETWEEN THE PARTIES AND LIMIT ADESPRESSO’S POTENTIAL LIABILITY IN APPROPRIATE RELATION TO THE FEES CHARGED UNDER THE ADESPRESSO TERMS, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE ADESPRESSO TERMS.
12. Governing Law, Arbitration, Class Action Waiver
12.1 Choice of Law. These AdEspresso Terms and any dispute arising out of or in connection with these AdEspresso Terms or Services (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of these AdEspresso Terms, by and under the laws of the State of California, without giving effect to conflicts of law principles thereof.
12.2 Exclusive Jurisdiction, Jury Trial Waiver. Except as provided in Subsection 12.3 and 12.4, all Disputes shall be subject to, and the parties irrevocably accept the exclusive jurisdiction of the state and federal courts located in San Francisco. The parties irrevocably waive any right to a trial by jury.
12.3 Injunctive Relief. Either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section 12.3 may be enforced by any court of competent jurisdiction.
12.4 Binding Arbitration. Except as provided in Section 12.3, all Disputes shall be finally resolved by binding arbitration before three (3) arbitrators pursuant to the rules (“Rules”) and under the auspices of the American Arbitration Association. In accordance with the Rules, each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in the chosen law and the online advertising industry. At either party’s request, the arbitrators shall give a written opinion stating the factual basis and legal reasoning for their decision. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings shall be conducted in the English language and take place in San Francisco, California, or any other place on which all three arbitrators agree unanimously.
12.5 Class Action Waiver. YOU AND HOOTSUITE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Hootsuite agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
12.6 Attorneys Fees. If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of these AdEspresso Terms or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will, subject to Section 11, be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
13. Export Compliance and Use Restrictions
You shall not use or access the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) you are not named on any U.S. government list of persons or entities prohibited from transaction with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you shall not allow Authorized Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) you shall comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located.
14.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law, or otherwise, without our prior written consent. Any attempted assignment or transfer without such consent will be void. We may freely assign or delegate all rights and obligations under these AdEspresso Terms, fully or partially, without notice to you. We may also substitute by way of unilateral novation, effective upon notice to you, any third party that assumes our rights and obligations under these AdEspresso Terms.
14.2 Severability. Each provision of these AdEspresso Terms is severable. If any provision of these AdEspresso Terms is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of these AdEspresso Terms or of that provision in any other jurisdiction.
14.3 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where and such failure results from any cause beyond such party’s reasonable control, including without limitation: if one or several third parties change their offerings or terms or no longer offer their services to you or AdEspresso at reasonable terms; denial of service attacks; acts of God; acts of war; acts of terrorism; labor disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
14.4 Entire Agreement. These AdEspresso Terms constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. We do not accept and we hereby expressly reject any additional terms that you may present, including, without limitation, terms in a unilateral notice from you to us or preprinted on a purchase order form or any other form generated by you; any such terms shall be null and void.