(last updated April 07, 2016; effective April 07, 2016)
(a) Information You Provide Us. When you register on our Website, request information, or make a purchase from us, you provide us with information about you such as your name, username, password, email address, and phone number. When you make a purchase from us, we will collect your payment card information, but we do not store or process this information beyond providing it to our payment card processor.
(b) Information We Collect from Your Use of Our Website. We collect information on your use of our Website to help us understand how users use our Website and improve our Services. For example, we collect the type of web browser you use, your operating system, your Internet Service Provider, your IP address, the pages you view, and the time and duration of your visits to our Website.
(a) Advertising Information. We collect and store non-personally identifying information from our partners, including ad networks and publishers, and Clients in order to display ads relevant to you. This information includes persistent device identifiers, device information, geo-location information, IP address, gender, demographic information, and behavioral and interest information (“Advertising Information”). Please see Section 4 for choices you have regarding the collection and use of this information.
(b) Information from Other Sources. We may supplement the information we collect and the segments we create from it with information obtained from third parties, such as demographic, behavioral, and interest information, in order to improve the relevance of products, services, and advertisements offered on or through our Services.
(a) Website Information. We use the information collected on our Website to provide our Services, to notify you of new products or services, to send service notifications, to customize the content you see, to fulfill your requests for products and services, to improve our Website, to conduct research, and to solicit your feedback and input about our Website. We do not rent, sell, or share this information with third parties, except as set forth in this policy.
(b) Advertising Information. We use the Advertising Information we collect to determine your preferences and general location, which in turn enables us to make our marketing and advertising services more useful and relevant to you. This includes making product recommendations to you in the form of advertisements sent by our Clients or by us on our Clients’ behalf to your computer, mobile device, or other connected device. We may sell, rent, or share Advertising Information with third parties for their advertising and marketing purposes. Please see Section 4 for choices you have regarding the collection and use of this information.
(c) Service Providers. We use service providers to provide certain services to us, such as credit card processing, analytics tools, DNS providers, data management services, Web hosting, and Web development. We provide our service providers with only the information necessary for them to perform these services.
(d) Analytics Information. We may use and disclose to third parties information regarding the usage of our Website (e.g., number of visits, page views, number of registered members who reside in a particular geographic location) for analytical purposes. Such information does not identify you individually.
(e) Affiliates; Change of Control. We may share information we collect with our affiliates. In the event that FuelX is merged, sold, or in the event of a transfer of some or all of our assets, we may disclose or transfer information we collect in connection with the negotiation and/or conclusion of such a transaction.
(f) Other Disclosures. We may disclose information about you to third parties if (a) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process, or governmental request, (b) to enforce our agreements, policies, and terms of service, (c) to protect the security or integrity of our Services, (d) to protect the property, rights, and safety of us, our customers, or the public from harm or illegal activities, (e) to respond in an emergency which we believe in good faith requires us to disclose information to assist in preventing the death or serious bodily injury of any person, or (f) to investigate and defend ourselves against any third-party claims or allegations.
You may review, correct, update, or change your account registration information by accessing your settings in your FuelX user profile or by contacting us at firstname.lastname@example.org.
At any time, you can opt-out of us using information about you for the purposes of serving you personalized advertisements by contacting email@example.com. Please note that this does not mean that you will not see ads or recommendations from us. Rather, you will see a generic ad or recommendation in place of personalized content because no data related to you individually will have been used to tailor the ad. When you opt-out, we place an opt-out cookie on your device. If you delete your cookies or use a different device or Internet browser after opting out, you will need to renew your opt-out. Please note that this opt-out will not prevent other companies from serving you personalized content.
You may opt out of receiving promotional email communications from us by using the unsubscribe link included within each email. Even after you opt out from receiving promotional messages from us, you will continue to receive administrative messages from us regarding our Services.
The security of your information is important to us. We have implemented reasonable security measures to help protect the information in our care. However, no data transmission over the Internet or method of storage is 100% secure. As a result, while we strive to protect your information, we cannot and do not guarantee or warrant the security of information collected or otherwise obtained by us in connection with our Services.
Our Services are not intended for children under the age of 13, and we do not knowingly collect personal information from children under the age of 13. If we learn that we have collected the personal information from a child under the age of 13, we will take steps to delete the information. If you are aware that a child under 13 has provided us with personal information, please contact us at firstname.lastname@example.org.
Some web browsers incorporate a “Do Not Track” (DNT) feature. Because there is not yet an accepted standard for how to respond to a DNT signal, our Website does not currently respond to such signals.
FuelX Legal Affairs
665 Third Street
San Francisco, CA 94107
1.1 Services. FuelX, Inc. (“FuelX”) will provide Customer with access to our digital marketing platform technology (the “Platform”), perform the professional services (“Services”) and provide the deliverables (“Deliverables”) described on the statement of work (“Statement of Work” or “SOW”), if applicable, and the insertion order (“Order Form” or “Insertion Order”) that the parties may enter into from time to time by mutual written agreement.
1.2 Statement of Work. The terms and conditions of this Agreement will apply to the Statement of Work or Insertion Order. Except as otherwise expressly set forth in the main body of this Agreement or in the Statement of Work / Insertion Order, in the event of a conflict, ambiguity or inconsistency between the provisions in the body of this Agreement and any Statement of Work, the provisions in the main body of this Agreement shall prevail.
1.3 License. FuelX hereby grants Customer a non-transferable and non-sub-licensable license to access the Platform solely for the purpose of receiving and using the Services in accordance with this Agreement.
2.1 Restrictions. Customer will use the Platform, Services, Deliverables and Software (as defined below) solely for its own internal business purposes in accordance with this Agreement. Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the (“Software”); (b) modify, translate, or create derivative works based on the Platform, Services, Deliverables or Software; use Platform, Services, Deliverables or Software for timesharing or service bureau purposes or for any purpose other than Customer’s own use and benefit; or (c) use the Platform, Services, Deliverables or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
2.2 Acceptable Use. Customer may not use the Platform, Services, Deliverables or Software: (a) in violation of this Agreement; (b) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (c) to violate any law, statute, ordinance or regulation, unfair competition, anti-discrimination and/or false advertising); Customer may access the Platform only through the interfaces and protocols provided or authorized by FuelX. Customer may not access the Platform, Services, Deliverables or Software through unauthorized means, such as unlicensed software clients.
2.3 Customer Content. “Customer Content” means information provided or made accessible to FuelX by or on behalf of Customer for the purpose of receiving or using the Platform, Services or Deliverables, including information regarding Customer’s products and services, ads and marketing and promotional text and content. Customer will: (a) provide FuelX with the Customer Content in the form and format and on the schedule requested by FuelX, or as otherwise required to access and use the Platform, Services or Deliverables; (b) update the Customer Content as requested by FuelX or as otherwise required to access and use the Platform, Services or Deliverables; (c) be responsible for all Customer Content; (d) ensure compliance with all laws, rules, and regulations applicable to its use of the Platform, Services, Deliverables and Software; and (e) obtain all waivers, consents and other rights necessary for FuelX to use the Customer Content to provide the Platform, Services, Deliverables and Software to Customer. Customer grants to FuelX a license to reproduce, use and distribute the Customer Content to provide the Platform, Services, Deliverables and Software to Customer.
2.4. Ad Serving, Data and Customer Metrics. FuelX monitors and delivers all ads through the FuelX ad delivery platform, managed by FuelX. FuelX measures, among others and not limited to, impression, click and conversion metrics (the “Customer Metrics”) through the FuelX platform. Customer acknowledge and agrees that the FuelX definitions of the Customer Metrics (and associated measurements) will control and are final, and will prevail over any other definitions or measurements, including without limitation those the Customer may track internally. The Customer Metrics will be the sole source of data for purposes of performance reviews and discussions with Customer. The Customer has access to the Customer Metrics generated by FuelX on a continual basis through the FuelX platform via a login or the API. The Customer Metrics within the FuelX platform is updated no less than every few hours on a daily basis.
2.5. Suspension, Limitation or Termination. FuelX shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Platform, Services, Deliverables or Software at any time in the event: (a) that FuelX determines that the Platform, Services, Deliverables or Software are being used in violation of any applicable law or regulation or either of Sections 2.2 or 2.3 above; (b) that FuelX determines that the Platform, Services, Deliverables or Software are being used in an unauthorized or fraudulent manner; (c) that FuelX determines that the use of the Platform, Services, Deliverables or Software adversely affects FuelX’s equipment or service to others; (d) FuelX is prohibited by an order of a court or other governmental agency from providing the Platform, Services, Deliverables or Software; (e) any other event which FuelX determines, in its sole discretion, may create a risk to the Platform, Services, Deliverables or Software or to any other customers if the Platform, Services, Deliverables or Software were not suspended. Without limiting the generality of Section 9, FuelX shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Platform, Services, Deliverables or Software in accordance with this Agreement.
3.1 Term and Renewal. The term of this Agreement is set forth in the Order Form or Insertion Order, unless earlier terminated as set forth herein. This Agreement may be renewed or extended if and as mutually agreed by the parties in writing in a new Order Form or Insertion Order.
3.2 Fees and Payment. Customer will pay all amounts due to FuelX under this Agreement as set forth in the applicable Order Form within thirty (30) days after the date of the applicable invoice. Invoices may be transmitted in either hard copy via mail or electronically via email. Payment may be made by electronic funds transfer, credit card or paper check. The Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on FuelX’s net income) unless Customer has provided FuelX with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to FuelX on account thereof. FuelX shall be entitled to charge interest and recovery costs on overdue amounts as specified by the relevant law or as set out in the Insertion Order.
3.3 Termination. Either party reserves the right to terminate this Agreement without cause provided fourteen (14) days’ prior written notice.
3.4 Suspension. Without limiting Section 3.5, FuelX may suspend its provision of, and Customer’s access to, the Platform, Services, Deliverables and Software if FuelX receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or otherwise violate any law or the rights of a third party.
3.5 Effect of Termination. Upon termination or expiration of this Agreement; (a) the license granted under Section 1.3 shall terminate; (b) Customer shall cease using the Platform, Services, Deliverables and Software and shall destroy all copies of all documentation provided by FuelX hereunder; (c) FuelX shall have no further obligation to provide the Platform, Services or Deliverables; and (d) Customer will immediately pay any unpaid fees; and (e) each party shall destroy all copies of Confidential Information of the other party.
4.1 FuelX. FuelX (and its licensors, where applicable) has and retains ownership of, and all intellectual property rights relating to, the Platform, Services and Deliverables, (including the Software), and any modifications, improvements or derivatives of the foregoing. Customer grants to FuelX a perpetual, non-exclusive license to use, modify, distribute and otherwise exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Platform, Services, Deliverables, or the Software.
4.2 Customer. Customer has and retains ownership of the Customer Content and any intellectual property rights with respect to the Customer Content.
5.1 Confidential Information. “Confidential Information” of a party means all data and information that is submitted to or learned by either party in connection with this Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Without limiting the foregoing, the following shall be deemed Confidential Information of FuelX: the Platform, Services, Deliverables, Software and the terms and conditions of this Agreement. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who need to know such confidential information for the purposes of this Agreement. Each party will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this Section 5 by its employees, consultants or agents. Confidential Information shall not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; or (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality.
5.2 Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in a writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 5, the affected party shall be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
6.1 FuelX Representations and Warranties. FuelX represents and warrants to Customer that FuelX has the necessary authority to enter into this Agreement and carry out its obligations hereunder.
6.2 Customer Representations and Warranties. Customer represents and warrants to FuelX that Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder.
6.3 Disclaimer. THE WARRANTIES STATED IN THIS SECTION 6 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FUELX AND THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, SERVICES, DELIVERABLES OR SOFTWARE, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FUELX DOES NOT WARRANT THAT THE PLATFORM, SERVICES, DELIVERABLES OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE.
7.1 FuelX Indemnification. FuelX will defend, indemnify and hold harmless Customer and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any third party claim that the FuelX Materials infringe any copyright, trade secret, U.S. patent or trademark right of such third party. In no event will FuelX have any liability under this Section 7.1 arising from unauthorized modifications made to the Technology. FuelX’s indemnification obligations in this Section 7.1 will be FuelX’s sole liability and Customer’s sole remedy for any claims that the Service or Materials infringe or misappropriate any intellectual property right.
7.2 Customer Indemnification. Customer will defend, indemnify, and hold harmless FuelX and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Customer’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Customer or the Customer Content.
7.3 Notification. The indemnified party agrees to give the indemnifying party prompt written notice of any claim subject to indemnification; provided that an indemnified party’s failure to promptly notify the indemnifying party will not affect the indemnifying party’s obligations hereunder except to the extent that such delay prejudices the indemnifying party’s ability to defend such claim. The indemnifying party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the indemnifying party deems appropriate, provided that the indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights without the indemnified party’s prior written consent (not to be unreasonably withheld). The indemnified party agrees to reasonably cooperate with the indemnifying party in the defense and settlement of any such claim, at the indemnifying party’s expense.
IN NO EVENT WILL FUELX BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF FUELX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL FUELX’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO FUELX UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.1. Dispute Resolution. If a dispute or claim arises under this Agreement (a “Dispute”) that the project managers or primary business contacts of each party are unable to resolve, a party will notify the other party of the Dispute in writing (which may be via email) with as much detail as possible. Customer and FuelX senior business representatives with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice. If the parties’ senior business representatives are unable to resolve the Dispute, or agree upon the appropriate corrective action to be taken, within such ten (10) business days, then either party may pursue any course of action available to it. Nothing contained in this Section will limit or delay the right of either party to seek injunctive relief from a court of competent jurisdiction, whether or not such party has pursued informal resolution in accordance with this Section.
9.2 Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
9.3 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.
9.4 Governing Law/Remedies. This Agreement is governed by the laws of the State of California, excluding its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Exclusive venue for any action hereunder will lie in the state and federal courts located in San Francisco County, San Francisco, CA and both parties hereby submit to the jurisdiction of such courts. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.5 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without FuelX’s prior written consent (not to be unreasonably withheld). FuelX may freely transfer and assign this Agreement or any of its rights and obligations hereunder. Any assignment in contravention of this provision will be null and void. The parties’ rights and obligations under this Agreement will be binding on and will inure to the benefit of all permitted assignees and successors in interest.
9.6 Entire Agreement/Amendments/Waivers.
This Agreement including all SOWs or Insertion Orders that are incorporated herein by reference, contain the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby (including any provision contained in any invoice, purchase order or other documentation that is different from or in addition to this Agreement or applicable SOW or Insertion Order). The provisions of this Agreement may not be amended except by an agreement in writing signed by authorized representatives of both parties referencing this Agreement and stating their intention to amend this Agreement. All waivers and modifications hereto must be in a writing signed by both parties.
9.7 Notices. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including without limitation, by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address:
If to Customer, to the name and address contained in the Order Form.
If to FuelX:
Attn: General Counsel
665 Third Street, Suite 400
San Francisco, CA 94107
Such addresses may be changed by notice given by one party to the other pursuant to this Section.
9.8 Reference. If mutually agreed upon, Customer agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by FuelX. Notwithstanding anything to the contrary contained herein, FuelX is permitted to disclose on its website or otherwise that Customer is one of its customers.
9.9 Severability. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of this Agreement, and the invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.
9.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together will be considered one and the same agreement.
9.11 Survival. The terms and conditions of Sections 3.5 (Effect of Termination), 4 (Intellectual Property Rights), 5 (Confidentiality), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), and 10 (General Provisions)] are intended to survive any expiration or termination of this Agreement.