These Terms of Service (these “Terms”) are a legal agreement between you (“Client”, “you” or “your”) and MadTech, LLC (d/b/a MadConnect) (“MadConnect”, “we”,“us” or “our”) for use of the platform (the “MadConnect Platform”) licensed by MadConnect, that solves for data platform interoperability by providing the integrations necessary for the transfer, normalization, and bi-directional communication between licensed data platforms across AdTech and MarTech, and enables clients to send and/or receive data to and/or from multiple third party platforms by means of a single application programming interface
(the “MadConnect API”). MadConnect and you may each be referred to as a “Party” or collectively referred to as the “Parties”.
These Terms Set Forth a Legally Binding Agreement
By accessing or using all or any portion of the Platform (as defined in Section 3.1 below), MadConnect API and/or any other products or services provided by MadConnect (collectively, the “Services”) as contemplated by your license agreement with MadConnect (the “License Agreement”), by clicking “I accept”, or “I agree”, or by paying for the Services offered by MadConnect or its affiliates or partners (e.g., Snowflake), you acknowledge you have read and understand and to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. You represent and warrant that any individual clicking through and otherwise accepting these Terms on your behalf has the full and lawful authority to do so. If you do not agree with these Terms, then you may not access or use the Services. The terms and conditions of these Terms apply to any and all use of the Services by you or your authorized users, including if you are using the Services pursuant to any demo or trial period, for the term of these Terms and you, on your own behalf and on behalf of your users, agree and consent to be bound by the terms and conditions of these Terms regardless of the type of use of the Service by you. If these Terms are considered an offer, acceptance is expressly limited to these Terms.
These Terms
These Terms prevail over any of your general terms and conditions regardless of whether or when you have submitted your request for proposal, order, or such terms. Provision of Services to you does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend these Terms. These Terms are solely between you and MadConnect (and not any MadConnect partners (e.g., Snowflake). In the event of a direct conflict between these Terms and the terms of the License Agreement, the License Agreement shall govern except with respect to the Limitation of Liability provisions which shall in all event govern.
1. THE SERVICES
MadConnect operates the MadConnect Platform that solves for data platform interoperability by providing the integrations necessary for the transfer, normalization, and bi-directional communication between licensed data platforms across AdTech and MarTech, and enables clients to send and/or receive data to and/or from multiple third party platforms by means of the MadConnect API. The MadConnect Platform is a self-service platform that enables Client to establish a connection (each a “Connection”) through the MadConnect Platform that results in the joining of two Connectors (one designated the source Connector, and the other designated the destination Connector) to send data from a source to a destination. “Connector” means a source or destination capability through the MadConnect Platform by which Client or a Client Customer, as the case may be, can send data to or receive data from a source or destination platform owned or operated by a third party that enables Client or a Client Customer, as the case may be, to send data to, or receive data from (a “Third Party Platform”) as designated from time to time by Client in the Client Account Dashboard. In order to establish each Connection through the MadConnect Platform, Client will be required to enter the unique API key provided to Client by the applicable Third Party Platform under its Third Party Platform Agreement (each a “Client API Key” and collectively “Client API Keys”). Client shall be solely responsible for protecting and maintaining the security of the Client API Keys. “Client Customer” means a customer of Client that is provided access to the MadConnect Platform through an embedded link on Client’s website or via a Client-branded version of the MadConnect Platform (“White Label Platform”) and is party to an agreement between Client and a Client Customer pursuant to which
such Client Customer is provided access to the Platform (“Client Customer Agreement“). “Third Party Platform Agreement” means an agreement between Client or a Client Customer, as the case may be, with a Third Party Platform related to and authorizing the transfer of data to and/or from such Third Party Platform.
2. CLIENT ACCOUNT; CLIENT CUSTOMER ACCOUNT
2.1. Client’s Account. Client must create an account to access and use the Services (“Account”). Client agrees to provide accurate and complete Account information including Client’s name and address, names of Client’s its employees, contractors, agents or representatives (collectively, “Client Users”), Client email address, telephone number, and contact information for
administrative and accounting matters. Client is solely responsible for all activities that take place on or through its Account, including the acts and omissions of any Client Users. Client shall, and shall require all Client Users to, (i) establish, maintain and utilize reasonable and appropriate security measures with respect to Client’s or Client Users’ access to and use of (a) the Services, including using appropriately complex passwords, keeping passwords confidential, and regularly changing passwords, and (b) any Client API Keys, and (ii) comply with MadConnect’s security guidelines and procedures applicable to the Services and the use thereof. MadConnect shall not be responsible for any unauthorized access to Client’s Account, including any unauthorized use of the Services by Client or Client Users or any unauthorized access to or use of any Client API Keys by any third party, and Client shall indemnify, defend and hold MadConnect harmless from and against any and all losses, costs and expenses arising out of or resulting from any such unauthorized access or use.
2.2. Client Customer Account. Client will, for itself and for and on behalf of the Client Customers, set up, or may request MadConnect to set up, a Client Customer account for each Client Customer (a “Client Customer Account”) within Client’s Account dashboard on the Platform (the “Client Account Dashboard”). Each Client Customer will thereafter have the ability to select and establish its Connections within its Client Customer Account.
3. LICENSE GRANT; USE RESTRICTIONS
3.1. License Grant. Subject to the terms and conditions of these Terms (including Client’s payment of the License Fees) and to any applicable License Agreement, MadConnect hereby grants to Client a non-exclusive, worldwide, irrevocable, non-transferable license for the Term (as hereinafter defined) to (i) access and use, as applicable, the MadConnect Platform or the White Label Platform (collectively, the “Platform”) for Client’s own internal business purposes, and (ii) provide access to the Platform to Client Customers for use for Client Customers’ internal business purposes. Client’s use of the MadConnect Platform may, at Client’s option, be via the self-service user interface, the functionality of the MadConnect Platform built into Client’s website as native capability via the MadConnect API (an “Embedded Model”) or a White Label Platform. Client will be responsible, at its cost and expense, for obtaining and maintain the domain name for the White Label Platform, if required. The White Label Platform will be 3 identical (including in terms of look and feel) to, and provide the same functionality as, the MadConnect Platform, except that the White Label Platform pages will be branded with Client trademarks. Client expressly acknowledges and agrees that except for including the Client’s trademark on the White Label Platform pages, MadConnect is not customizing or otherwise performing any development work with respect to the White Label site. MadConnect retains all right, title, and interest in and to the Platform, including without limitation all Intellectual Property Rights therein. MadConnect retains any rights not expressly granted to you in these Terms or the applicable License Agreement(s). Client shall promptly and timely provide such cooperation as may be reasonably requested by MadConnect, at not charge to MadConnect, to enable MadConnect to perform its obligation under these Terms.
3.2. Use Restrictions. You agree that by using the Services, you shall (i) be responsible for your compliance with these Terms, all applicable License Agreements, and all activities occurring within or from your Account, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which you acquired content or data, and your use of the Services,
(iii) use reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with these Terms, the License Agreement and applicable laws and government regulations. Client and the Client Customers shall use the Platform solely to establish Connections with Third Party Platforms with which Client or the Client Customers have Third Party Platform Agreements, and only for the number of Connections and Rows of Data for which Client has paid License Fees under the Pricing Addendum set forth in the License Agreement. Except as expressly permitted in these Terms, you (a) may not make available or use the Services for the benefit of any third party, including, but not limited to, as a service bureau; (b) may not sell, resell, license, sublicense, transfer, distribute, make available, rent or lease the Services, or exploit the Services for any commercial purposes; (c) may not use the Services to store or transmit any illegal, immoral, unlawful, offensive, obscene and/or unauthorized materials or interfere with or violate a third party’s rights to privacy and other rights, or harvest or collect personally identifiable information about third parties without their express consent; (d) may not use the Services to transmit or otherwise make available any malicious code, including any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program; (e) may not interfere with or disrupt the integrity, performance, or operation of the Services or any part thereof; (f) may not attempt to gain unauthorized access or bypass any measures imposed to prevent or restrict access to the Services; (g) may not use or take any direct or indirect action that imposes or circumvents any usage limits; (h) may not copy (except for making a reasonable
number of copies for backup or archival purposes), modify, distribute, create derivative works, translate, port, reverse engineer, decompile, or disassemble any portion of the Services, or any material that is subject to our proprietary rights or use any of the foregoing to create any software or service similar to the Services; (i) may not use any information or materials of any user or other third party appearing on or through the Services, without our prior written consent; (j) may not misrepresent or impersonate any person or provide inaccurate Account information; or (k) use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Services or its contents. Any breach of these Terms and/or a License Agreement by you, as shall be determined in our sole discretion, may result in the immediate suspension or termination of your Account.
4. CLIENT USAGE INFORMATION
The Services are designed to allow Client to access the Services via API(s) from Client or Client’s applications, web connected devices or web properties. You hereby grant MadConnect and its subcontractors, a perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive right and license to collect, store and use information regarding Client’s use of the Services, including record of acceptance of these Terms, IP address, time of access, usernames, number of connections, number of transactions, and volume of data transmitted (“Client Usage Information”), during the Term of these Terms and any applicable License Agreement and following the termination or expiration of these Terms and any applicable License Agreement to maintain, improve and support the Service. MadConnect will only share or disclose Client Usage Information with others under special circumstances as follows: (i) with third parties who work on MadConnect’s behalf to provide the Services; (ii) to the extent needed to comply with laws or to respond to lawful requests and legal process (provided that MadConnect will endeavor to notify Client if MadConnect has received a lawful request for Client’s information); (iii) to protect the rights and property of MadConnect, its agents, Clients, and others including to enforce MadConnect’s agreements, policies, and terms of use; (iv) in an emergency, including to protect the personal safety of any person; (v) in connection with a sale or transfer of all or a part of MadConnect’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or (vi) as directed by Client, including through its use of the Services. Client acknowledges that MadConnect may also use Client Usage Information in an anonymized and aggregated form (“Aggregated Data”) for MadConnect’s own business purposes, including use, duplication, modification, training of artificial intelligence and creation of derivative works regarding usage and performance of the Service. MadConnect shall own all right, title and interest to the Aggregated Data and any derivative works thereof or therefrom.
Upon termination of MadConnect’s relationship with Client, MadConnect’s business need, or in accordance with MadConnect’s data retention policy, MadConnect may delete Client Usage Information no longer in active use. MadConnect takes no responsibility and assumes no liability for any Client Usage Information.
5. DATA TRANSFER LIABILITY; THIRD PARTY PLATFORMS
5.1. Data Transfer Liability. MadConnect shall have no obligation or liability whatsoever, under these Terms, a License Agreement or otherwise, with respect to or under any Third Party Platform or Third Party Platform Agreement, or for the transfer of any data between Client or a Client Customer and any Third Party Platform. Client acknowledges and agrees that the MadConnect Platform only provides automated mapping of such data for the purpose of enabling the transfer of data contemplated by these Terms and/or a License Agreement and accordingly MadConnect will have no visibility into any data transferred by or to Client or any Client Customer. Client acknowledges and agrees that all data that is sent by Client or a Client Customer to, and all data
that is received by Client or a Client Customer from, a Third Party Platform via the Platform will at all times be in encrypted form. For clarity, the foregoing shall not apply to any data transferred to or from MadConnect via a Client Connection in connection with the transformation, normalization and validation by MadConnect of Client unstructured data in accordance with a Client-provided schema and/or specifications, for use by Client within systems owned and
operated by Client (“Data Services”).
5.2. Third Party Platforms. MadConnect is not responsible or liable for the content or data accessible through any Third Party Platforms accessed by Client through the Services. You acknowledge and agree that MadConnect does not make any warranties, representations, or conditions of any kind and without any endorsement with respect to the Third Party Platform. MadConnect does not warrant and will not have any liability or responsibility arising from or relating to the Third Party Platforms. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the applicable third- party. Client understands and acknowledges that Client is solely responsible for all content and data it sends or accesses through the Services, and Client, not MadConnect, has full responsibility for all such content and data, including its dissemination, transfer, accessibility, legality, reliability, accuracy, and appropriateness.
6. TERM; TERMINATION; ENFORCEMENT
6.1. Term. The term of these Terms shall commence on the date you first use/access our Services (the “Effective Date”) and shall continue until terminated by you or MadConnect in accordance with these Terms and the License Agreement (the “Term”).
6.2. Termination. Either Party may terminate these Terms and the License Agreement, as of the date specified in a notice of termination, if the other Party fails to perform any of its material obligations under these Terms and does not cure such failure within thirty (30) days following receipt of a written notice of such default. Either Party may terminate these Terms if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3. Effect of Termination. Upon the effective date of the termination of these Terms and the License Agreement, you will immediately cease having access to the Services, including any Services purchased during the term of the License Agreement or were unused during the term of the License Agreement. Once cancellation of your Account is confirmed, your information may be deleted from the Services. We do not accept any liability for such loss. Since deletion of all information is final, please be sure that you do in fact want to cancel your Account before doing so. Termination of your Account shall not relieve you of your obligations to pay amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under these Terms prior to or at the date of termination. Without limiting the generality of the foregoing, if (i) you terminate any Services, except as specifically permitted for MadConnect’s material breach, or (ii) MadConnect terminates these Terms and/or the License Agreement due to your material breach, any and all payment obligations of you in connection with the Services shall become immediately due and payable with respect to such Services.
6.4. Enforcement. MadConnect may, in its sole discretion, immediately limit, terminate or suspend Client’s or any Client User’s access to all or part of the Service and its license rights under the License Agreement, with or without notice, if MadConnect determines that Client’s services, offerings or activities violate these Terms. Without limitation, MadConnect also reserves the right to report any activity (including the disclosure of appropriate data) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. MadConnect also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct.
7. PAYMENT
7.1. Fees; Billing. To access the Services and in consideration of the license, you agree to pay license fees (“License Fees”), based on the Connector or Connection type(s), as applicable, used by Client, as set forth in the License Agreement or through your Account. Where Client has entered into the License Agreement, except as set forth therein, all License Fees are due and payable to MadConnect within thirty (30) days of receipt of MadConnect’s invoice. Client acknowledges and agrees that it is subject to all additional payment and billing obligations set forth in (as applicable) the License Agreement or Client’s terms and conditions with MadConnect’s partners (e.g., Snowflake) from which Client is receiving access to the Services. If Client fails to pay any License Fees as and when due (i) MadConnect shall have the right to suspend Client’s and/or any Client Customer’s access to the Services, until payment is made in full and (ii) MadConnect may charge a late fee of one and one-half percent (1½%) per month of, if lower, the maximum rate allowed by law. Client will reimburse MadConnect for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts. If MadConnect suspends or terminates access to the Services and/or its license, MadConnect will not be responsible for any damages (including lost revenue, lost profits, lost savings, business interruption or any consequential, exemplary, special, indirect, or punitive damages) incurred as
a result of the suspension or termination of the Services and/or the license. Client is solely responsible for any third-party fees, including costs associated with using bandwidth to send and receive data and/or storage/handling not included in the Services, that Client incurs when accessing and using the Services. In the event a Connection is between Client and a separate client of MadConnect, MadConnect will provide Client and such separate MadConnect client the option to “choose” who pays, or “split” the License Fees.
7.2. Fee Disputes. Users agree to bring up and settle any issues with the billing within thirty (30) days of receipt of MadConnect’s invoice. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third- party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with MadConnect.
7.3. Changes to Price Terms. MadConnect reserves the right to change its pricing terms for the Services and/or its licenses at any time, in which case MadConnect will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for the Services renewals after such changed pricing terms have been communicated to you and/or the general public.
8. CONFIDENTIAL INFORMATION
8.1. Definition. The Parties acknowledge that, in the course of performance under these Terms and/or a License Agreement, one Party (“Disclosing Party”) may intentionally or inadvertently disclose, deliver or permit access to by the other Party (“Receiving Party”) certain data, materials, methodologies, and information (in written, oral, and/or electronic format) that a
reasonable person would understand to be secret, proprietary and/or confidential given the circumstances of the disclosure or the nature of the information being disclosed (collectively “Confidential Information”).
8.2. Confidentiality Obligations. Receiving Party shall hold all Confidential Information of Disclosing Party in the strictest confidence and shall not disclose or provide such Confidential Information to any third Party without the express written consent of Disclosing Party in each instance, except that Receiving Party may disclose or provide such Confidential Information to
the officers, directors, employees, subcontractors and suppliers of Receiving Party whose duties justify a need-to-know such Confidential Information; who are notified of their burden of confidentiality; and in the case of those who are not officers, directors or employees of Receiving Party, who have signed a non-disclosure agreement containing restrictions, terms and conditions that are at least as restrictive as those set forth herein. In all events Receiving Party shall use the same level of care to protect the Confidential Information of Disclosing Party as Receiving Party uses to protect Receiving Party’s own most confidential and sensitive information but not less than reasonable care. Receiving Party shall not make any use whatsoever of Confidential Information of Disclosing Party except such limited use as is required to perform Receiving Party’s obligations under these Terms. To the limited extent reasonably necessary for such permitted use, the foregoing shall include the right to make a reasonable number of copies of such Confidential Information each of which shall be subject to this section.
8.3. Exclusions. The obligations set forth in this section shall not apply to Confidential Information
which Receiving Party can demonstrate by reasonable written evidence: (i) is already, or otherwise becomes, generally known by third parties as a result of no act or omission of Receiving Party; (ii) subsequent to disclosure hereunder is lawfully received from a third Party having the right to disseminate the information and without restriction on disclosure; (iii) is generally furnished to others by Disclosing Party without restriction on disclosure; or (iv) is independently developed by Receiving Party with written evidence of such independent development.
8.4. Compelled Disclosures. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, Receiving Party shall first have given written notice to Disclosing Party and a reasonable opportunity to object (with Receiving Party’s assistance) and Receiving Party shall have made a reasonable effort to obtain a protective order; or (ii) to establish Receiving Party’s rights under these Terms, including to make such court filings as it may be required to do.
8.5. Return of Confidential Information; Ownership. Upon the written request of Disclosing Party, Receiving Party shall cease providing access, using and promptly securely destroy all copies of any Confidential Information of Disclosing Party then in Receiving Party’s possession or under Receiving Party’s control, subject to Disclosing Party’s right to the return of original copies of any of its Confidential Information. Upon the written request of Disclosing Party, Receiving Party shall confirm in writing that Receiving Party has complied with the obligations set forth in this paragraph. Notwithstanding the foregoing, Receiving Party is not required to destroy, erase or modify any archival records that it maintains in the normal course of its business, provided that the terms of these Terms shall survive termination and apply to such Confidential Information until it is securely destroyed. Except as expressly provided herein, nothing in these Terms shall be construed to grant Receiving Party any right, title or interest (including any license) in or to Confidential Information of Disclosing Party.
8.6. Data Processing. To the extent MadConnect is processing any “personal data” or “personal information” as those terms are defined and understood under applicable laws, the Parties will comply with the terms and conditions of the Data Processing Addendum (“Data Processing Addendum”) posted at Data Processing Addendum.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Intellectual Property Ownership.
(i) All content on the Services (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, Information, code and software, and the selection and manner of compilation and presentation) and any intellectual property provided by MadConnect to you (collectively, the “Content”), is owned by MadConnect, our content providers, or our licensors (as applicable), and may be protected by copyright, trademark, and other applicable laws. MadConnect, our content providers, or our licensors (as applicable) retain full and complete title to and reserve all rights in the Content, including Content on the Services, including all associated Intellectual Property Rights. MadConnect neither warrants nor represents that your use of Content on the Services will not infringe rights of third parties. “Intellectual Property Rights” means all forms of intellectual property rights and protections and include without limitation all right, title and interest arising under U.S. common and statutory law, and laws of other countries in and to all: (a) patents, inventions, discoveries and ideas, whether or not patentable; (b) trademarks, service marks, trade names, and all other designations of source or origin and the goodwill associated therewith (all of the foregoing in this clause (b) collectively “Trademarks”); (c) copyright rights, works of authorship, software; (d) database rights, rights in trade secrets, know-how, processes, technology, financial information and other proprietary or confidential information; (e) domain names, mask works, moral rights, rights of privacy and publicity; (f) similar or corresponding intellectual property and proprietary rights, and other subject matter of any of the foregoing; (g) tangible embodiments of any of the foregoing; (h) all rights and remedies against infringement, misappropriation, or other violation (including the right to sue for past, present and future infringements of any of the foregoing); and (i) licenses in, to and under any of the foregoing.
(ii) You may access the Services and Content only for your permitted use under these Terms, and you may not modify or delete any copyright, trademark, or other proprietary notice relating to any Content you access. Your access to and use of the Services does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services. You agree not to display or use in any manner the MadConnect marks without MadConnect’s advance written permission.
(iii) All software used in connection with the Services is the property of MadConnect or our licensors and protected by United States and international copyright laws, and subject to separate license terms, in which case those license terms will govern such software. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Services, use of the Services or access to the Services, or any contact on the Services through which the Services are provided, without express written permission by us.
(iv) All rights not expressly granted herein are reserved by MadConnect, our affiliates, and licensors. Without limiting the generality of the foregoing, except for the license expressly granted in these Terms, MadConnect retains all right, title, and interest in and to the Platform, the Services and the Documentation, including without limitation all Intellectual Property Rights therein. You agree to abide by all additional restrictions displayed on the Services, and as they may be updated from time to time.
9.2. Feedback; Residual Knowledge. If Client or any of its Client Users provides MadConnect with any suggestions, recommendations, or other feedback relating to MadConnect’s current or future products or services (“Feedback”), MadConnect shall have the right to use the Feedback in any manner, including but not limited to future enhancements and modifications to the Services. Client hereby grants to MadConnect and its assigns a perpetual, worldwide, fully transferable, sub licensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Client or any third party. By providing us Feedback you represent and warrant (i) that you have the right to disclose the Feedback, (ii) that the Feedback does not violate the rights of any other person or entity, including, but not limited to, Intellectual Property Rights, and (iii) that your Feedback does not contain the confidential or proprietary information of any third party or parties. In addition, MadConnect shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services.
10. WARRANTIES; DISCLAIMER OF WARRANTIES
10.1. Mutual Warranties. Each Party represents and warrants that: (i) it has all requisite corporate power and authority to execute, deliver and perform its obligations under these Terms and the License Agreement; (ii) the execution, delivery and performance of these Terms and the License Agreement (a) has been duly authorized by such Party, and (b) will not conflict with, result in a breach of or constitute a default under any other agreement to which such Party is a party or by which such Party is bound; and (iii) it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character
transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on such Party’s ability to fulfill its obligations under these Terms and the License Agreement.
10.2. Client Warranties. Client warrants that Client owns or has obtained all necessary rights, title and interest, and obtained all necessary consents, to transfer any Client data to the Third Party Platforms via the Service.
10.3. Disclaimer. YOU EXPRESSLY AGREE THAT THE USE OF, OR INABILITY TO USE, THE SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MADCONNECT AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MADCONNECT AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR= WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY THIRD-PARTY WEBSITES OR SERVICES LINKED TO OR INTEGRATED WITH OUR SERVICES. WE DO NOT REPRESENT OR WARRANT THAT (i) YOUR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) ANY ERRORS IN THE SERVICES WILL BE CORRECTED, (iii) THE QUALITY OF THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS, (iv) THE SERVICES WILL BE FREE OF ANY WORMS OR VIRUSES OR ANY CODE OF A MALICIOUS AND/ OR DESTRUCTIVE NATURE, OR (v) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. MADCONNECT AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR CONSUMPTION OF ANY CONTENT; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR CLIENT DATA; (iv) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (v) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES; (vi) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES; OR (vii) LOSS OR DAMAGED CAUSED BY ANOTHER USER’S VIOLATION OF THESE TERMS.
11. INDEMNIFICATION
11.1. Indemnification by Client. You agree to indemnify, defend and hold MadConnect and its parent, subsidiaries, affiliates, partners, officers, directors, contractors, licensors, service providers, subcontractors, suppliers, interns agents, and employees, harmless from and against any and all losses, claims, liabilities, damages, judgments, actions, proceedings, investigations (whether formal or informal), demands or expenses (including reasonable attorneys’ fees), or threats thereof, due to, arising out of or relating to (i) the use by Client or any Client Customer of the Platform and/or the Services, including any claim by any Client Customer under its Client Customer Agreement; (ii) Client’s or any Client Customer’s connection with, use of, or transfer of data to or from, any Third Party Platform, or the failure of Client, any Client Customer or any Third Party Platform to encrypt data that is transferred via the Platform and/or Service; (iii) any unauthorized access to or use of by Client or any Client Customer of any Client API Key or any Client Customer API Key; (iv) any breach or violation by Client or any Client Customer of these Terms or the documents incorporated by reference or hyperlink; (v) any breach by Client or a Client Customer of a Client Customer Agreement or a Third Party Platform Agreement; (vi) Client’s or any Client Customer’s violation or alleged violation of any applicable federal, state, international or local law and any and all regulations, rules or ordinances (vii) the fraud, gross negligence or willful misconduct of or by Client or any Client Customer; or (viii) the use by MadConnect of any of the Client Marks on a White Label Platform, including any claim that such use infringes or violates any intellectual property or other legal right of any person or entity.
11.2. Indemnification Procedures. Upon commencement of any indemnified claim, MadConnect shall give you notice thereof as promptly as practicable, and you shall have the sole ability to defend and settle the third-party claim; provided, that you shall not settle the claim in any way other than the payment of money (provided that customary confidentiality and non-defamation provisions applicable to indemnitees may be agreed). MadConnect shall cooperate, at your cost, in all reasonable respects with you and your attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that MadConnect may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. If you do not assume full control over the defense of a claim subject to such defense as provided in this Section, MadConnect shall have the right to defend the claim in such manner as it may deem appropriate, at your cost and expense.
12. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MADCONNECT AND ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, INTERNS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING
FROM THESE TERMS, THE PLATFORM OR THE SERVICES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF MADCONNECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL THE MAXIMUM TOTAL LIABILITY OF MADCONNECT AND ITS AFFILIATES FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS AND/OR CLIENT’S ACCESS OR USE OF THE SERVICE OR THE PLATFORM, EXCEED THE AGGREGATE AMOUNT, IF ANY, THAT CLIENT HAS PAID TO MADCONNECT FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CLAIM FIRST AROSE, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), TORT, NEGLIGENCE OR OTHERWISE.
13. GOVERNING LAW & JURISDICTION
Client and MadConnect agree that all matters arising from these Terms or relating to the use and operation of the Services will be governed by the laws of the State of Connecticut, without regard to its conflicts of laws principles. Client agrees that all such matters will be litigated in the state courts of Connecticut or the United States District Court of the District of Connecticut (and appellate courts therefrom). Client consents to the personal jurisdiction of such courts, stipulates to the fairness and convenience of proceeding in such courts, and covenants not to assert any objections to proceeding in such courts.
14. GENERAL
14.1. Entire Agreement. These Terms, any License Agreement, our Data Processing Addendum and any other policies or operating rules posted by us on the Services or in respect to the Services or the Platform constitute the entire and exclusive agreement and understanding between you and MadConnect related to the Services and use of the Platform, and supersedes any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms). Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
14.2. Changes to the Service; Changes to the Terms.
(i) Changes to the Service. We reserve the right to modify or upgrade the Services and/or the Platform for any reason, without notice, at any time, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Additionally, Updates may also modify or delete in their entirety certain features and functionality. You agree that MadConnect has no obligation and shall not be liable to you or to any third party to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates
will be deemed part of the Services and be subject to all terms and conditions of these Terms.
(ii) Changes to the Terms. MadConnect reserves the right, at our sole discretion, to update, change, amend, modify or replace any part of these Terms by posting updates and changes on this website. We may elect to notify you of such changes by mail, email, posting of modified Terms, or some other similar manner. However, it is your responsibility to check the Services regularly for changes to these Terms. At all times, the most current version of these Terms will be in effect and each updated, changed, amended, modified or replacement Terms supersedes any prior Terms. Your continued use of or access of the Services following the posting of any changes to these Terms constitutes acceptance of
those changes.
14.3. Future Functionality. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MadConnect regarding future functionality or features.
14.4. Severability. In the event that any provision of these Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of these Terms.
14.5. Waiver. The failure of MadConnect to exercise or enforce any right or provision of these Terms, shall not impair such right or be constituted as a waiver of any such right or remedy. Any single or partial exercise of a right or remedy by us shall not preclude further exercise or any right or remedy by us. No waiver by us shall be valid unless in writing signed by us.
14.6. Survival. Upon termination, all provisions of these Terms, which, by their nature, should survive
termination, shall survive termination, including, without limitation, confidentiality, ownership provisions, warranty disclaimers, indemnification, and limitations of liability.
14.7. Assignment. You may not assign these Terms to any other party. We may assign these Terms or delegate any or all of our rights and responsibilities under these Terms to any third parties, without notice to you. Subject to the foregoing limitation, these Terms will mutually benefit and be binding upon the Parties and their respective successors and assigns. There are no third party
beneficiaries of these Terms.
14.8. Headings. The headings used in these Terms are included for convenience only and will not limit
or otherwise affect these Terms.
14.9. Contact Information. Questions about these Terms should be sent to: partnerships@MadConnect.io. 