Terms of Service
Last updated: January 25, 2021
This MASTER SERVICES AGREEMENT (this “Agreement”) is entered by and between the Licensee and the Licensor, as defined below. It is operative and legally binding upon any use of the Website, as defined below, which use is deemed a binding acceptance of this Agreement by the Licensee. Licensee’s click-through acceptance of this Agreement, or any other agreement with the Licensor stating acceptance is indicated by Website use or any other use of Company products or services, is for recordkeeping purposes only.
ParOne, Inc, a corporation organized under the laws of the State of Delaware and having an address for service of process listed below (“we,” “us,” “ParOne,” the “Company”). :
245 8th Ave #1003
New York, NY 10011
“You,” the “user,” .
Licensor and Licensee may be known individually herein as a “Party;” together, as the “Parties.”
Certain capitalized terms not otherwise defined herein shall have the meanings assigned to them in the attached Exhibit A - Definitions.
You and the Company may be known individually herein as a “Party;” together, as the “Parties.”
2.The Software Defined.
The Software shall include the Software as known internally to the Parties and represented in the respective marketing materials of the Affiliates of Licensor, however styled including where styled as “Par One, or “ParOne” and all Derivative Works thereof, and however identified in the Documentation. Nothing in this Agreement restricts Licensor’s right to rename, restyle, or otherwise amend or alter the marketing collateral related to the Software, including its name. The Software shall be further defined by the Service-Level Agreement which may be entered into by and between the Parties on a separate basis (the “SLA”) as to the features of the Software that Licensor will provide to Licensee. Licensor is not obligated to provide any Software features or functionality not provided for in the SLA.
A. Software is Provided “As-Is.” The Software is provided “as-is” with no warranty or warranties, express or implied, as to merchantability, fitness for a particular purpose, or is under any under warranty. THIS AGREEMENT CONTAINS A DISCLAIMER OF WARRANTIES BOTH EXPRESS AND IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER ANY APPLICABLE LAW, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY DISCLAIMED. LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE UNDERSTANDS THAT THE SOFTWARE IS PROVIDED “AS-IS” AND THAT LICENSEE UNDERSTANDS THE NATURE AND EXTENT OF THIS DISCLAIMER OF WARRANTIES. No agent of Licensor is authorized to alter or expand the warranties of Licensor as set forth and as expressly limited herein.
c. Licensor May Gather Information About Software Use. Licensee hereby authorizes and consents to Licensor monitoring and collecting information about Licensee’s use of the Software, and grants to Licensor a perpetual, irrevocable, sublicensable, transferrable, royalty-free right to use such information for any purpose. Licensor may anonymously compile statistical information related to the performance of the Software for any purpose, which may be “anonymized” within the meaning of the GDPR.
3.The Website Defined.
A. Website is Provided “As-Is.” The Website is provided “as-is” with all faults without any warranty or warranties, express or implied, as to merchantability, fitness for a particular purpose, or is otherwise under any under warranty. The Company makes no representations or warranties as to maintenance of the Website. THIS AGREEMENT CONTAINS A DISCLAIMER OF WARRANTIES BOTH EXPRESS AND IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER ANY APPLICABLE LAW, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY DISCLAIMED. YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND THAT THE WEBSITE IS PROVIDED “AS-IS” AND THAT YOU UNDERSTAND THE NATURE AND EXTENT OF THIS DISCLAIMER OF WARRANTIES. The Website is provided without warranty as to availability; the Company does not represent or warrant that the Website will be continuously available, free from down time (including maintenance time), or otherwise. Maintenance or down time may occur without notice to you. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk. No agent of the Company is authorized to alter or expand the warranties of the Company as set forth and as expressly limited herein.
B. The Website May Include Third Party Technology. You acknowledge that the Website may include or interact with Third-Party Technology. “Third-Party Technology” includes any products or services other than the Company who provide any Website functionality or any other products or services via the Website.
4.We May Gather Information About Website Use.
Licensee shall pay Licensor such sums, at such times, as are set forth with greater particularity in the SLA.
6.Intellectual Property License.
You hereby grant the Company a limited, irrevocable, freely-transferrable, royalty-free license to use your name, logo, commercial likeness, and other items for the Company’s ordinary marketing purposes only (for example, for displaying your name as an existing client of the Company on the Company’s website, for displaying your name or logo on Content that you create and distribute via the Software or the Website, or other usual and customary marketing items) and for no other purpose. You do not grant the Company a general use license to make use of your intellectual property except to the limited extent provided herein. Other references to a “license,” “Licensee,” “Licensor,” and other related terms used herein shall refer to the permitted use of the Software by Licensee, granted by Licensor, only, without reference to any transfer, assignment, delegation, license or sublicense, or any other permissive use of any of Licensor’s intellectual property, including its name or commercial likeness (however styled), any of its other original works (whether or not registered, trademarked, patented, or otherwise memorialized in formal intellectual property protections with the United States Patent & Trademark Office or otherwise, whether or not reduced to practice, whether or not received, or created, as a “work made for fire,” whether or not marked with customary marks of authorship such as “Copyrighted,” “All rights reserved,” or otherwise), or other works over which Licensor may assert any intellectual property rights (including works assigned or licensed, rights delegated, or other derivative or third-party rights of any kind grated under contract or otherwise, without limitation, to Licensor), shall remain the property of Licensor, any other terms or conditions of this Agreement notwithstanding. Similar terms like “license,” “Licensee,” and “Licensor” shall have what the Parties agree is their ordinary and customary meaning strictly within the context of Licensor’s industry, which is the creation and distribution of software, in which terms like “license,” “Licensee,” and “Licensor,” refer to the permitted use of software without reference to intellectual property rights of any kind whatsoever.
7. Permissive Use of the Software.
For the Term of this Agreement (as defined below), Licensor grants Licensee permission to use the Software subject to the terms and conditions set forth herein, including as further set forth in the SLA. The SLA shall govern those features of the Software to which Licensee has access during the Term of this Agreement. All other terms of this Agreement and the SLA notwithstanding, and regardless of which or any Software features are provided for in the SLA, the Parties mutually represent and warrant their understanding that:
A. The Software is a Platform within the Meaning of the Applicable Laws. Any feature of the Software allowing for the creation or posting of Content, as defined below, is a “Platform” within the meaning of Section 230 of the Communications Decency Act. ParOne, however styled, at least, is a Platform includable in the Software according to the terms of the SLA. To the extent that the SLA or the Website provide for features allowing Licensee to post, create, share, or otherwise input Content in any form, Licensee shall assume all legal and actual responsibility for Content, including as to the accuracy and truthfulness of any claims related to products, persons, or other claims amenable to objective truth or falsehood, shall assume all legal and actual responsibility for non-infringement of any intellectual property rights in any person whatsoever, shall not post, create, or share any pornographic or otherwise sexually explicit Content, shall not post, create, or share any other content which infringes on any third-party intellectual property rights (and shall indemnify, hold harmless, and defend at its own expense ParOne from any claims, including derivative claims, based upon such rights, including costs associated with demonstrating the invalidity of such claims), content which calls for or tends to provoke or incite violence against any third party, which is defamatory or libelous, which impugns the commercial benefit of any contract, which calls for the commission of any crime, which actually or tends to violate the laws of any jurisdiction in which we conduct any business, which is expressly forbidden by this Agreement (including the SLA), which is reasonably likely to bring Licensor into disrepute, or which is reasonably likely to cause, or impute to, Licensor any liability whether regulatory or otherwise, and you shall indemnify, hold harmless, and defend at its own expense the Company for any and all such issues arising from your use of the Website or the Software. All other provisions of this Agreement notwithstanding, Licensor shall reserve an unlimited and unqualified right to remove or delete, modify, hide, or otherwise alter or terminate without notice or opportunity to cure any Content. Licensor may remove any Content at any time for any or no reason and without notice to you. Licensor’s discretion as to removal of Content is unlimited and need not be exercised reasonably. Licensor shall comply with all valid DMCA “takedown” notices without notice or opportunity to cure to Licensee. Licensor is not obligated to permit the appeal of the removal of any Content.
B. Licensee has No Right to Alter, Amend, or Reverse-Engineer Software Code or Website Features. All software code and Website features are proprietary to Licensor. There is no permitted Use of the Software or Website that includes altering, amending, reverse-engineering, or otherwise modifying, copying, deleting, removing, using or re-using any Software or Website source code. Any such use of Licensor code is nonconforming Use hereunder, and is Default and grounds for Termination, as further defined below. The Parties mutually agree that, Software code being essential to Licensor’s core business, and that breach of this provision may cause irreparable harm to Licensor of a sort not reasonable compensable by money alone, in the event that Licensor determines in its sole discretion that Licensee is in breach of this provision, Licensor may seek whatever injunctive relief, including preliminary injunctive relief by means of a temporary restraining order or otherwise, as may be reasonable necessary to prevent Licensee from disclosing or otherwise using Software code for any reason, entry for which injunctive relief Licensee shall not oppose.
C. Licensee Indemnifies Licensor for Noncoforming Use. To the fullest extent permissible under any applicable law, including the GDPR and related privacy laws, Licensee indemnifies, releases, and agrees to defend at its own expense Licensor for any liability, whether arising from civil suit, regulatory action, or otherwise, from any Use of the Software by Licensee, including nonconforming Use of Software platform features, whether or not arising from Licensee Content or for any other reason of Licensee Use. h.Any Nonconforming Use is Default Hereunder. Any Use that Licensor deems nonconforming with the terms of this Agreement, in its sole and unlimited discretion, which discretion need not be exercised reasonably, is Default hereunder and grounds for Termination, as further defined below.
D. Licensee Users are Agents of Licensee. To the extent that multiple user licenses are granted to Licensee, every Software user who is an Affiliate of Licensee is deemed an agent of Licensee for purposes of determining conforming or nonconforming Use, breach hereof or Default hereunder, and indemnification of Licensor.
8.Permissive Use of Content.
Licensees who choose to insert Content (“Content”) do so at their own risk. The display of any Content within Licensee content does not constitute an endorsement of such Content. A Licensee’s advertisers are not Affiliates within the meaning of this Agreement. A Licensee’s advertisers are not third-party beneficiaries, intended or otherwise, of this Agreement. Licensee represents and warrants that any outages related to such internally-placed Content, including lost revenue because the Licensor did not display such an Content, are non-compensable.
9. Licensor Right to Provide Content Space.
10. Maintenance; Updates.
Except to the extent of features provided under the SLA, Licensor is not obligated to provide maintenance, customer service, updates, modifications, or other improvements or adjustments to the Software.
11. Compliance with Data Privacy Laws;
GDPR Notice. Licensee represents and warrants that any of it Use is compliant with all applicable data privacy laws including, without limitation, the GDPR, the data privacy laws of the State of California, and any data privacy laws related to the possession or transmission of the personal identifying information of persons under the age of eighteen. Licensee represents and warrants that none of its Use involves the storage or transmission of any information contemplated by the Health Insurance Portability and Accountability Act (“HIPAA”) or other laws related to the privacy and integrity of health or healthcare-related information.
SLA May be Amended Without Amending the Rest of this Agreement. Licensor and Licensee may mutually agree to revisions to the SLA without amending or re-executing this Agreement, so long as such revisions are agreed to in writing.
13. Term; Termination; Default.
This Agreement shall continue for the shorter of the term set forth in the SLA (the “Term”), or until Terminated by Licensor. Licensor may Terminate this Agreement for any or no reason by transmitting notice of such Termination to Licensee. If any sums remain due hereunder at the time of Termination for any reason, or upon default hereunder by Licensee which includes the breach of any term hereof (“Default”), such sums shall become immediately due and payable to Licensor. If such sums are due periodically (for example, monthly), such sums shall be pro-rated and calculated daily.
14. Additional Provisions; Miscellaneous.
A. No Agency or Partnership. No powers of agency or partnership are created hereunder. No mutual cooperation between Licensor and Licensee for any purpose, including mutual cooperation as to improvements to the Software, creates any agency or partnership. No defense of Licensor by Licensee for any reason provided for herein creates any power of agency or partnership.
B. Governing Law; Venue. This Agreement shall be governed according to the laws of the State of Georgia without regard for the choice-of-law provisions of the laws of any state or country. Venue for any disputes arising hereunder shall rest exclusively with the state and federal courts of Georgia. Licensee waives forum non conveniens and related defenses of non-convenience as to any dispute arising hereunder.
C. Late Payments. If Licensee is late in paying any sums due hereunder, including pro-rated sums due upon Termination or Default, such sums shall accrue interest in the greater amount of 5% monthly calculated daily, or the highest amount allowable under applicable usury statutes.
D. Attorneys’ Fees and Costs. In the event of any dispute arising hereunder, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, including court costs and related litigation expenses.
E. Contact Information; Notices. Any notices which must be provided in writing hereunder shall be deemed properly provided if transmitted to the contact information of either Party provided below.
245 8th Ave #1003
New York, NY 10011
F. Successors; Assigns. Licensee’s rights, duties, powers and obligations hereunder may not be transferred, delegated, or assigned absent the express written permission of Licensor. This Agreement shall be binding upon the successors or assigns of the Parties without the need for subsequent manual execution of this Agreement by such successors or assigns.
“Affiliate” or “Affiliates” means any agent, employee, shareholder, affiliate, contractor or subcontractor, executive, officer, parent, subsidiary, business entity in which a Party has a 50% or greater share of stock or equity (however styled), or other person (natural or otherwise) over whom a Party exerts any actual legal or de facto authority or control, or other person deemed an “Affiliate” by a Party by virtue of any contract or other like relationship with that Party. As to Licensee, “Affiliate” also means any person (natural or otherwise) who uses the Software for the benefit of, at the request or direction of, or by permission of Licensee, whether or not such Affiliate is specifically known to Licensor.
“Content” means any production or reproduction of any kind, including without limitation text, video, audio, hyperlinked content, social media content, images, or other information whether or not original to Licensee or any other person, or any other form of information or data created, posted, or shared to or by Licensee.
“Derivative Works” means any software created or used by Licensor, whether or not relating to the Software but including, at least, all patches, modifications, changes cosmetic or otherwise, or digital works or content produced or acquired, whether or not deployed or provided to Licensee, or any other intellectual property of Licensor germane to the Software.
“Documentation” means any written representations by Licensor relating to the Software, including user manuals, patch history or version history, descriptions of Derivative Works, marketing materials and Content, or any other written representations by Licensor relating to the Software.
“GDPR” means the General Data Protection Regulation of the European Union and the related data privacy laws of the United Kingdom.
“Third Party Technology” includes any software, websites, hosted services, portals, whether stored locally or otherwise, created, owned, hosted, or otherwise provided or made available by third parties who are not Affiliates of any Party.
This Exhibit shall be subject at all times to the pricing and technical specifications which we may issue from time to time. We are not bound to the use of standard rate cards, though we may provide a rate card upon request if we so elect. Content are billed at a per-advertiser rate, meaning that we reserve the right to set further terms and conditions (including as to price, the size and prominence of Content, Content reach, and any other quality or feature of Content) per advertiser. Without limiting the generality of the foregoing, any Content shall conform to the following guidelines:
1.Subject to Conforming Use Terms.
Content are subject to all terms and conditions of the MSA related to conforming use. We reserve the right to impose additional terms of conforming use at any time including as to the content, phrasing, design, or other visual elements of Content. We reserve the right to cancel, without refund or reimbursement, any Content which are nonconforming at the time they are ordered, even if the nonconformity isn’t noticed until after Content go live.
2.Content Subject to Distribution Partner Terms.
Content may be displayed through third parties, including advertisers, platforms, and third-party technology solutions for delivering Content (such persons altogether, “Distribution Partners”). A Distribution Partner is a third-party beneficiary of your obligations under thisa Agreement. The Licensor reserves the right to deny the display of any Content via Distribution Partners. You indemnify, hold harmless, and agree to defend at your own expense the Licensor for any Distribution Partner claims of any kind arising, at least in part, on the basis of any of your Content.
3.Procedure for Placement.
When you order an Content, you must specify the type of Content, the amount that you wish to spend, and cost for any available advertising spaces according to cost procedures that we specify. If we accept an order for Adveritsement space we will deliver your ads as Content space becomes available. When displaying your Adveritsement, we will use reasonable best efforts to deliver the ads to our audience in conformity with our agreed target audience. However, Content space is provided “as-is,” and we cannot guarantee that in every instance an Content will reach any particular (specific) viewer or audience.
4.In addition to the terms of conforming use set forth herein and in bid documentation:
5.Content must be paid:
A. According to payment terms on our invoices;
B. In full and when due according to such invoices, including with applicable taxes, at the amounts stated on invoices.
C. When you order any Content you authorize us to run personal and/or business credit checks from any credit reporting bureau. We will only inform you if a negative credit report is the reason for the denial of placement where the law so requires.
D. If you create an Content account, you are responsible for maintaining privacy and passwords. You may be asked to reset your password if you lose it. We cannot remind you of your password because we do not know it.
E. If you authorize direct debit payments, you authorize full payment of any invoices in the amount stated on such invoices, including any applicable taxes. You are responsible for remitting any taxes you are responsible for remitting, for example VAT. You indemnify, hold harmless, and agree to defend us at your own expense for any failure to comply with applicable tax laws.
F. If you cancel an Content early, we will invoice up to the last date that an Content runs. We will pull canceled Content as soon as reasonably practical but cannot guarantee that Content are canceled immediately upon your request to cancel.
G. The amounts we charge may be subject to and include applicable taxes and levies, including VT.
H. If your payment method fails or your account becomes past due, we may take additional steps to collect past due amounts including formal collections. You will pay all expenses associated with such collection, including reasonable attorneys’ fees. Past due amounts will accrue interest at the rate of 1% per invoice period (default monthly) or the lawful maximum, whichever is less.
I. We may allow you to prepay for Content with a prepaid balance whose sole purpose is for the purchase of Content. Such prepayments may not be used to purchase or pay for any other products or services. All such balances are refundable except where required otherwise by law. We are not a bank and balance accounts are not insured by any bank insurance, including the Federal Deposit Insurance Corporation.
J. All clients pay be invoices, which may require prepayment, unless we specifically agree otherwise.
K. We may periodically engage in upgrades, maintenance, or other technical functions which may impact an Content. We reserve the right to engage in such technical functions whenever we deem reasonably necessary.
M. Content placement is subject to availability, which may not be continuous and which is at all times provided on an “as-is” basis.
N. We cannot prevent click fraud, technological issues, or potentially invalid interactions with Content.
O. Our license to deliver your ad will end when we have completed your Order. You understand, however, that:
a. Once displayed, ads are public information. Ads may be re-shared and accessed outside of the targeted audience.
b. If your ad is falls within the laws or regulations for political advertising in any jurisdiction, we may display (at no cost to you) and provide access to the ad content and creative, and information about the ad campaign (such as total spend and delivery data, and targeting information) for a period of seven years from the completion of your order.
P. You consent that we may disclose your advertising content, and all information associated with your advertising, to a governmental entity or body if we believe that disclosure would assist in a lawful investigation.
Q. We may provide reporting related to the performance of any Content. Such reports are provided on an “as-is” basis and cannot be guaranteed as to their accuracy or completeness. Such reporting may not be relied upon as an objective metric of Content success, nor is any invoice subject to the delivery of such reporting unless we agree as such beforehand.
R. If we allow you to place an Content this does not imply a right or license to issue any press release regarding your relationship with us or to otherwise use our name, IP, or commercial likeness for any purpose.
S. You may not place Content on someone else’s behalf without:
a. Presenting documents sufficient to guarantee that you have the actual and apparent authority to do so;
b. Provide reasonable assurances that the party you represent has agreed to each and every one of these terms and conditions;
c. Provide reasonable assurances that the party you represent guarantees payment of any invoices.Even after the cancellation of all Content, these terms and conditions will continue to apply without modification.