About – Software
These following provisions address the rights and obligations of any representative of a company (“Company”) who, with “Login Access”, accesses and utilizes the “Software” of Strike Exchange, L.L.C., dba Strike Social (“Strike”). Company and Strike are each a “Party” and collectively “Parties”. The definitions for some of the capitalized terms may be found at the end of these provisions.
Strike has developed proprietary software with functionalities for media-planning, -optimizing, -analyzing, and -reporting services (“Software”) for projects, as campaigns or other undertakings, involving digital-media advertising (“Project(s)”). The Software is linked to the underlying DoubleClick Bid Manager platform (“DBM”) for the purchase by the Company of digital media from DBM, including the fees charged by DBM, for a given Project (“Media Cost”). To access and utilize the Software, Company must provide a DBM Partner account (“Account”) which will be linked to the Software and for which the Company will be financially responsible to DBM.
If the Company wishes to have Strike manage a Project utilizing a different platform other than DBM, i.e. Facebook Ads Manager, LinkedIn Ads, Snapchat Ad Manager, Google AdWords, or other platform, a separate “insertion order” shall be completed, shall be signed by both the Company and Strike, and shall set forth the terms, conditions, and fees for the Project in question; such Project and insertion order will not be governed by these provisions.
Login Access; Training.
Strike will provide Company with administrative support to aid in establishing the required linking of the Account with the Software, to provide login-access capability for the Company to the Software (“Login Access”), and to coordinate with Company for the one-time, group, training session, via video-conference, for the identified personnel of Company on the subject of accessing and utilizing the Software (“Training”).
Relating to the Software, two (2) separate services are available from Strike which would each utilize the Software, specifically the “Access-Service” and the “Managed-Service”, as follows:
- Access-Service. With regard to the Software, the Company will have the option of accessing and utilizing the Software on a self-service basis (“Access-Service). Under the Access-Service, the Company will have the opportunity to create and monitor a Project which will be planned, optimized, analyzed, and reported on by the Software.
- Managed-Service. With regard to the Software, the Company will have the option of having Strike utilize the Software on a managed-service basis (“Managed-Service”). Using the Managed-Service, the Company would authorize, and provide parameter guidance to, Strike personnel to create, manage, and monitor a Project which will be planned, optimized, analyzed, and reported on by the Software.
As detailed in either written correspondence between, or pursuant to a separate written agreement signed by, the Company and Strike, fees for access and use of the Software may or may not include a “Setup Fee”, “Access Fee”, and/or “Managed Fee”, with all said fee amounts to be expressed in the same currency as the associated Media Cost(s) for the Projects in question (collectively, the “Fees”), as follows:
- Setup Fee. For the initial setup of the Login Access and the Training (“Setup and Training”), there may or may not be an upfront, one-time fee (“Setup Fee”).
- Access Fee. The Company may be responsible for, and owe to Strike, a fee for the Access-Service (“Access Fee”); the Access Fee may be calculated as a percentage (“Percentage”) of the “Total Media Cost” (as defined by DBM) under the Account, during and for each calendar month, as tracked, measured, and reported-upon by the Software (the “Monthly Media Cost”).
- Managed Fee. If the Company shall authorize the Managed-Service for a given Project, then for each calendar month for said Project, the Company shall be responsible for, and owe to Strike, a management fee (“Managed Fee(s)”); the Managed Fee is in addition to, and not in lieu of, the Access Fee associated with said Project; the Managed Fee shall be calculated as a percentage of the Media Cost for said Project during the associated calendar month (the “Managed Fee Percentage”) and shall be detailed in separate insertion order to be signed by the Company and Strike.
At the end of each calendar month, Strike will provide Company one or more invoices for the Fees for the Services provided during said calendar month (the “Invoice(s)”); payment terms are “net 30 days” from date of each Invoice; if any Invoice is not paid, in full, within the payment terms, Strike reserves the right and discretion to:
- charge interest of 1.5% per month (or the maximum allowed by law, whichever is lower) on the outstanding balance of the Invoice(s); and/or
- immediately terminate the provision of any further Services to Company; and/or
- suspend or terminate the Login Access of the Company.
These provisions shall govern the access and use of the Software by the Company and may be modified from time to time, in the sole and absolute discretion of Strike; the ongoing utilization of the Software through the Login Access shall automatically bind the Company to the then-current version of these provisions published at www.strikesocial/software/about.
Right to Services.
Subject to the full and timely payment by Company to Strike of any and all applicable Fees for the Services, Strike grants Company a non-exclusive, non-transferable right and opportunity to utilize the Access-Service and receive the Managed-Service. On Company’s behalf (and for any third party on whose behalf Company is acting), Company will continuously obtain and maintain throughout the Term (and hereby grants to Strike) all rights and permissions needed by Strike for storing, tracking, analyzing, and servicing the Company Data and Project Data.
The Software is the proprietary and intellectual property of Strike. The Company neither has nor acquires any license or ownership right, whatsoever, in and/or to the Software.
Through the Access-Service, Company will have access to then-available reporting relating to the Projects (“Reporting”). Reporting is provided for and conditioned upon the limited internal use of Company and Company’s clients.
Company will not use the Software in connection with any Projects, advertising, or other digital content that are obscene, pornographic, or that depict illegal activity, violate any law/regulation/third-party right (including intellectual property and privacy rights), are deceptive, or are defamatory. Company’s right to access and utilize the Software, have the Login Access, and receive the Services shall automatically terminate if Company violates any portion of the foregoing provision.
Company will use the Services only for Company’s own use or on behalf of a client with which Company has a direct affiliation or contractual relationship. Company shall be prohibited from and shall not in any manner whatsoever or by any means:
- attempt to circumvent any security measure of the Software;
- share the Login Access of Company with, or otherwise grant account access to the Software to, any third party, including any clients of Company, without the prior written permission of Strike;
- reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble any software code or features of the Software;
- use or authorize the use of the Software for any purpose not otherwise expressly permitted under these provisions;
- copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Software, or use the Software for co-branding, timesharing, arbitrage, servicing bureau; and/or
- distribute viruses or other malware through any mechanism.
If Strike, in Strike’s sole discretion and absolute judgment, determines that Company has violated/breached any of the foregoing obligations/prohibitions, Strike may immediately suspend and/or terminate the Login Access; in the event of any such violation/breach by Company that results in a termination or suspension of Strike’s ability to conduct business with DBM, without limiting any rights or remedies available to Strike, and notwithstanding any other of these provisions to the contrary, Company shall be liable to Strike for all lost profits resulting from said termination or suspension from DBM, which shall be added to the invoice(s) from Strike to Company for the Fees.
“Beta” Features and Testing.
Strike may offer to Company the right to use certain experimental and/developmental features in the Software that are made available to Company by Strike on a test basis (“Beta Features”). All Beta Features are provided on an “as is” basis, without any representations, warranties, covenants, or obligations of any kind. Any use by Company of Beta Features is solely at Company’s own risk. Strike may add, modify, or remove any Beta Features at any time, for any reason, in the sole discretion and absolute judgment of Strike, without advance notice to Company.
The obligations of Strike to provide the Access-Service and/or Managed-Service shall at all times be subject to the underlying availability of DBM and the Account; if, when, and while DBM or the Account are unavailable through the Software or otherwise inhibit the functionality of the Software, Strike shall be relieved from any and all obligations to provide the Services; otherwise Strike shall provide the Services in a commercially-reasonable manner; Strike is not liable for any outages or downtime of the Software or unavailability of the Services as a result thereof.
Strike reserves the right to continually develop, evolve, and maintain the Software and the Services without a requirement of advance notice to Company. In the event Strike chooses to discontinue the general availability of the Software, Strike will provide Company with prior written notice of thirty (30) days.
As between Strike and Company, Company owns all right, title, and interest in all Company Data; however, Strike may use the Company Data to provide the Services to Company.
As between Strike and Company, Company owns all right, title, and interest in and to all Project Data; however, Company hereby grants Strike a non-exclusive, perpetual, fully-paid-up right and license to store, analyze, and use the Project Data, in a macro, anonymous, and generic manner, for the purposes of optimizing the performance of, and for aggregated and analyzed reporting about any/all of, the projects utilizing the Software.
As between Strike and Company, Strike owns all right, title, and interest in all Strike Data. Aside from the rights expressly granted under these provisions with regard to the Company Data, Project Data, and/or Strike Data, neither Party grants the other Party any other right, express or implied, and each Party reserves all rights not expressly granted hereunder.
Any suggestions, comments, improvements, ideas, enhancement requests, or feedback provided by Company, which in any manner whatsoever relate to the Software or Services “(Feedback”), may be used by Strike without compensation, accounting, or attribution to Company, and Company grants a perpetual, irrevocable, fully-paid-up right and license to the Feedback to Strike.
“Confidential Information” means any information relating to or disclosed in the course of the Services, which is or should be reasonably understood to be confidential. Company Data is also Confidential Information. The receiving Party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling said Party’s obligations in accordance with these provisions. The receiving Party will promptly return or destroy the other Party’s Confidential Information upon request of the other Party. “Confidential Information” does not include information that is or becomes part of the public domain through no fault of the receiving Party, was already in possession of the receiving Party, or was independently developed by the receiving Party without violation of this section. The receiving Party may disclose Confidential Information if required to do so by law, if the receiving Party provides the disclosing Party with prompt notice and complies with any protective order imposed on such disclosure.
Neither Party will make any public statement about the other Party relating to Software without the prior written approval of the other Party, except that Strike may include Company’s name and logo in Strike’s marketing, promotional materials, and customer lists.
Relationship of the Parties.
In performing the obligations under these provisions, Strike is acting as an independent contractor to Company; the relationship of the Company and Strike is not a joint venture, partnership, or principal-agent relationship.
No Third-Party Beneficiaries. The Services are provided for the sole and respective benefit of Company; in no event will any third-party benefits or obligations be created by these provisions.
Neither Party shall be liable to the other Party for any delay or failure in performance hereunder, due to a force majeure event that is beyond the reasonable control of the Party unable to perform. If a force majeure event occurs, the Party delayed or unable to perform shall give immediate written notice to the other Party; the other Party may, by written notice, terminate the affected Project if a force majeure event remains in effect for more than thirty (30) days. For purposes of these provisions, a force majeure event means acts of God, wars, riots, terrorism, civil insurrections, and abnormal forces of nature (including, without limitation, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, and explosion), failure of underlying platform (i.e. DBM), governmental preemption, legal proceedings, strikes, or labor unrest.
If any of these provisions is/are determined illegal, unenforceable, or invalid (in whole or in part) by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect without being impaired or invalidated in any way.
Representations and Warranties.
Company represents and warrants that Company has the right to exploit, publish, manufacture, distribute, promote, advertise, and market the content of the Project(s) and has obtained all required consents associated therewith. Company acknowledges that Strike shall not liable for and/or as a result of errors made by Company in entering Company Data relating to the Access-Service.
Company shall indemnify and hold Strike harmless from any and all liability to any third party for Strike’s use of the Company Data in providing the Services and shall indemnify and hold Strike harmless from any and all losses, costs, and expenses (including but not limited to reasonable legal fees) arising out of any breach of the representations and warranties made by the Company under these provisions.
The Services and these provisions will be governed by the laws of the State of Illinois (without regard to its conflict of law principles). Each of the Parties agrees that the venue for any dispute arising under the Services and/or these provisions shall be exclusively in the courts of Cook County, Illinois; each of the Parties hereby irrevocably consent to jurisdiction and venue in such courts and waive any objection based on inconvenient forum.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE PROVISIONS, THE SERVICES ARE PROVIDED BY STRIKE “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. STRIKE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE BENEFITS TO COMPANY FROM THE SOFTWARE OR SERVICES OR THAT THE SOFTWARE WILL BE ERROR-FREE, ALWAYS AVAILABLE, OPERATE WITHOUT LOSS OR CORRUPTION OF DATA, OR BE FREE FROM TECHNICAL MALFUNCTION.
Limitation of Remedies. In no event shall either Party be liable to the other Party, or any third party, for indirect, special, incidental, consequential, punitive, and/or exemplary damages, loss of profits, loss of use or data, or interruption of business, whether such damages or losses are alleged in tort, contract, or indemnity. Strike’s maximum liability for any and all claims arising directly or indirectly from the Services shall not under any condition in the aggregate exceed the Fees relating to the Project(s) in question.
“Company Data” means the non-public data that Company imports into the Software to create the Projects.
“Fees” means the Setup Fee, the Access Fee, the Managed Fee, and any other fees/charges owed by Company to Strike in accordance with these provisions and/or other written correspondence and/or agreements between the Company and Strike.
“Project Data” means the data generated from the Project through the Access-Service. Project Data does not include Company Data or Strike Data.
“Services” means the services and functionality provided by the Software, the Access-Service, any Managed-Service, and/or any other services Strike provides to Company.
“Strike Data” means all data residing in the Software that does not otherwise constitute Company Data or Project Data.