TERMS OF SERVICE

Updated May 25, 2018

Please read these Terms of Service (“Terms”) carefully. By using Adahead (the “Service”) or signing up for an account, you’re agreeing to these Terms. This is a legal agreement. Service is offered through the URL www.adahead.com or its subdomains (the “Website”) that allows you to create and manage Apple Search Ads campaigns. Adahead is owned and operated by MPR MEDIA INC, a company organized under the laws of Massachusetts, United States. As a Customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “Customer” according to this agreement (or “you”).

The following Term regulate the access to and use of the Services (as defined below). By accessing or using the Service in any manner, you agree that you have read and agree to be bound by this Terms to the exclusion of all other terms. If you are accepting this Terms on behalf of an organization, you represent that you have authority to do so. If you have any questions, concerns or comments regarding these Terms, please contact us at hi@adahead.com

We reserve the right to change our services, pricing, any other terms and conditions at our sole discretion, with or without prior notice.

1. Definitions

1.1 Provider has the meaning set forth in the preamble.

1.2 Agreement has the meaning set forth in the preamble.

1.3 Effective Date has the meaning set forth in the preamble.

1.4 Apple Search Ads Service means access to the features provided by Apple Search Ads.

1.5 Customer has the meaning set forth in the preamble.

1.6 Authorized User means any person acting on behalf of Customer or who was granted access to the Services by Customer.

1.7 Provider Systems means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

1.8 Service Software means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.

1.9 Provider Materials means the Service Software, documentation and Provider Systems and any and all other information, specifications, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider Systems.

1.10 Services has the meaning set forth in Section 2.1.

1.11 Advertising Spend means an advertising budget which Customer spent on Apple Search Ads as promotional expenditures over a 30 days period.

1.12 Term means the term of this Agreement commences as of the Effective Date and will continue in effect until terminated with subsequent 30 days notice.

1.13 Adahead Services means a SaaS tool for automatization and optimization of advertising accounts (including campaigns, ad groups and keywords) for Apple Search Ads advertising service available at adahead.com domain and its subdomains.

1.14 Website means adahead.com domain and its subdomains.

1.15 Person means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

1.16 Access Details means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Adahead Services.

1.17 Customer Systems means the Customer’s information technology infrastructure, including computers, software, hardware.

1.18 Customer Data means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data or content by or through the Services.

1.19 Provider Employee means all individuals involved in the performance of Services as employees, agents.

1.20 Fees has the meaning set forth in Section 6.1.

1.21 Force Majeure Event has the meaning set forth in Section 15.

2. Services

2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Adahead Services (collectively, the “Services”) in accordance with the terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the agreed specifications 24 hours per day, seven days per week every day of the year, except for:

(a) scheduled downtime;
(b) service downtime or degradation due to a Force Majeure Event;
(с) any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Services other than in compliance with the express terms of this Agreement and the agreed specifications; and
(d) termination of Customer’s or any Authorized Users’ access to use of the Services as permitted by this Agreement.

By using Services, Customer or Authorized User represent and warrant that Services won’t be used in a way that violates any laws or regulations.

2.2 Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.

2.3 Changes to Services. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to:

(a) maintain or enhance
(i) the quality or delivery of Provider’s services to its customers,
(ii) the competitive strength of or market for Provider’s services or
(iii) the Services’ cost efficiency or performance; or

(b) to comply with applicable law. Without limiting the foregoing, either party may, at any time request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.

2.4 Termination of Services. Provider may, directly or indirectly suspend, terminate or otherwise deny Customer’s, any Authorized User’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if:
(a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or
(b) Provider believes, in its sole discretion, that:
(i) Customer or any Authorized User has failed to comply with, any terms of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the agreed specifications;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or
(iii) this Agreement expires or is terminated.

2.5 Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the:
(i) Provider Systems; and
(ii) performance of support services and Service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
(i) information, instructions or materials provided by any of them to the Services or Provider;
(ii) results obtained from any use of the Services or Provider Materials; and
(iii) conclusions, decisions or actions based on such use.

2.6 Apple Search Ads account. Customer must have an advertising account with Apple Search Ads (“Search Ads”) in order to use the Services.

3. Customer Restrictions.

3.1 Customer Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(с) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Details;
(e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Provider Systems in whole or in part;
(f) remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(g) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or violates any applicable law;
(h) access or use the Services or Provider Materials in any manner that may harm minors; (i) access or use the Services or Provider Materials to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;
(j) access or use the Services or Provider Materials in any manner that may: be defamatory of any person; obscene, offensive, hateful or inflammatory; promote sexually explicit material; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; be likely to deceive any person; breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be in contempt of court; be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, upset, embarrass, alarm or annoy any other person; impersonate any person, or misrepresent your identity or affiliation with any person; give the impression that the contribution emanates from Provider, if this is not the case; advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse; contain a statement which Customer knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.

4. Customer Obligations.

4.1 Customer shall at all times:
(a) set up, maintain and operate in good repair and in accordance with the agreed specifications all Customer Systems on or through which the Services are accessed or used;
(b) provide Provider Employee with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the agreed specifications; and
(c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2 If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately:
(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify Provider of any such actual or threatened activity.

5. Security.

5.1 Customer has and will retain sole responsibility for:
(a) all Customer Data, including its content and use;
(b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems;
(d) the security and use of Customer’s and its Authorized Users’ Access Details; and
(e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Details, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

5.2 Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Details and protect against any unauthorized access to or use of the Services.

6. Fees and Payments.

6.1 Fees. Customer shall pay Provider the fees in accordance with the following plans:

(a) Customer Advertising Spend exceeded $30,000.00 USD dollars – Services fee is $750 USD; or
(b) Customer Advertising Spend less than $30,000.00 USD dollars – Services fee is 2.5% of Advertising Spend.

The Services billing based on a 30 days of usage and fee is non-refundable.

6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

6.3 Payments. Customer shall pay all fees within 3 days after the end of 30 days of usage the Services.

6.4 Payment processing. Provider uses the 3rd party payment processing system Stripe. The Stripe API process credit and debit card transactions for Provider’s account. Provider is a “Partner Application” as defined in the Stripe Terms of Service. By using Services, Customer also agree to be bound by Stripe’s Terms of Service (https://stripe.com/us/legal).

6.4.1 Customer agree that Provider shall not be liable for any issues regarding financial and monetary transactions between Customer and any other party, including Stripe.

6.4.2 Customer expressly understand and agree that Provider shall not be liable for any payments and monetary transactions that occur through Customer use of the Service.

6.4.3 Provider is not liable for loss or damage from errant or invalid transactions processed with Customer over Stripe. This includes transactions that were not processed due to a network communication error, or any other reason. If Customer process a transaction, it is Customer responsibility to verify that the transaction was successfully processed.

6.4.4 Customer understand that Provider uses the Stripe API to run the Services and that the Stripe API is subject to change at any time and such changes may adversely affect the Services.

6.5 Payment security. All transaction information passed between Provider and payment processing system is encrypted using 256-bit SSL certificates. No cardholder information is passed unencrypted.

7. Free trial.

The Services is available to Customer without charge for 14 days, starting the date when Customer first obtains access to the Services. By Customer request the trial period may be extended for 1 week. Customer has time to make a clear decision as to whether or not Customer are going to use the Services. If Customer continue to use the Services after the 14 days, Provider will require to provide a valid credit card.

8. Feedback.

Customer may, at its discretion, provide feedback, suggestions, improvements, enhancements, and/or feature requests to Services with respect to its use of the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Provider. Notwithstanding the foregoing, Provider will not disclose to any third party that Customer is the source of any Feedback. Customer shall, and hereby do, grant to Provider a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

9. Confidentiality.

Customer agree to hold in confidence and not use or disclose confidential information. If Provider share confidential information about Services, Customer must keep it confidential and use reasonable security measures to prevent disclosure or access by unauthorized persons.

10. Termination.

In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1 or Section 9.
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Customer may terminate this Agreement, effective on written notice to Provider at any time with the 30 days notice.

10.1 Effect of Expiration or Termination.

Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer data or Customer’s confidential;
(c) Customer shall immediately cease all use of any Services or Provider;
(d) Provider may disable all Customer and Authorized User access to the Services and Provider Materials;

11. Warranty Disclaimer

ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

12. Sole Remedy

IF YOU ARE DISSATISFIED WITH OUR SERVICES OR HARMED BY US OR BY ANYTHING RELATED TO OUR SERVICES, YOU MAY TERMINATE THIS AGREEMENT. SUCH TERMINATION SHALL BE CUSTOMER SOLE AND EXCLUSIVE REMEDY (AND PROVIDER’S SOLE AND EXCLUSIVE LIABILITY) FOR ANY BREACH OF CONTRACT.

13. Attorneys’ Fees.

In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

14. Privacy Policy.

Provider may use and disclose Customer information according to Privacy Policy. Provider’s Privacy Policy will be treated as part of these Agreement.

15. Force Majeure Event.

15.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.

15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

16. Support.

Provider offers email-based support. Contact the support desk at hi@adahead.com. Provider will use commercially reasonable efforts to assist Customer with any problems with the Service.