QUARTILE TERMS OF SERVICE
These Quartile Terms of Service (“Agreement”) are entered into as the date of the first Order Form entered into by the Parties (“Effective Date”) by and between Quartile, LLC (“Quartile”) and the client listed on the Order Form (“Client”). Client and Quartile are sometimes referred to herein as the “Parties” or a “Party,” as applicable.
WHEREAS, Client requests Quartile to provide certain services as detailed in this Agreement;
WHEREAS, Quartile wishes to provide such services to Client for the Fees and on the terms herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. AGREEMENTS & ORDER FORMS.
1.1 - Scope & Current Offerings
This Agreement sets forth master terms that govern Client’s access to and use of Quartile’s services, which include its digital advertising platform and related services, demand side platform/media purchase services, and other related offerings that may be provided by Quartile from time to time (“Services”). The Services include without limitation “Marketplace Advertising Services” (e.g., Walmart, Amazon and Instacart advertising) and “Website Marketing Services” (e.g., Google Shopping, Google Search, Bing and Facebook advertising, in each case when sending traffic to Client’s website for sale).
1.2 - Order Forms
An “Order Form” is an order form executed by Quartile and Client that references this Agreement and includes any relevant details referenced herein including Fees and the specific Services to be provided (including specific Marketplace Advertising Services and Website Marketing Services). The Quartile Fees shall be determined by the pricing table as set forth in the Order Form (“Pricing Tiers”). With the exception of changes to Fees due to changes in Pricing Tiers, additional Services may be added by the parties without an Order Form so long as they are memorialized by written agreement, email acceptable, and in such case the use of the term “Order Form” in this Agreement shall refer to such writing. For the avoidance of doubt, Quartile shall not have any obligation to provide Services which are not set forth on an Order Form. Upon mutual execution, each Order Form will be deemed to have been incorporated by reference into and governed by this Agreement. In the event of any conflict between an Order Form and the Agreement, this Agreement shall govern, unless otherwise specifically noted otherwise in the Order Form.
1.3 - Access
Quartile shall provide Client with non-transferable access credentials for the Services. Client shall not (i) misrepresent or mask identities when using the Services or seeking access credentials; (ii) select or use as a username a name subject to any rights of a person or entity other than Client without appropriate authorization; or (iii) select or use, as Client’s username, a name that is otherwise offensive, vulgar or obscene. Client shall safeguard all access credentials provided by Quartile and shall ensure the confidentiality and security thereof. To the extent Client is a corporate entity rather than an individual, Client shall require its users to comply with all laws and this Agreement. Client acknowledges that it shall be fully responsible for any acts or omissions of its users, whether authorized or unauthorized. Quartile may update the manner of accessing the Services in its discretion.
2. FEES & PAYMENT
2.1 - Fees
Client shall pay to Quartile the Fees on a monthly basis as set forth in the applicable Order Form (“Fees”). Unless otherwise specified in the Order Form or by other written agreement between Quartile and the Client; Quartile Fees will be calculated by determining the level of Client’s aggregate monthly advertising spend (“Ad Spend”) in Quartile managed Channels; the number of advertising platforms (“Channels”) that Quartile manages on behalf of the Client; and/or the level Service agreed upon by Quartile with the Client; which will collectively determine the Pricing Tier and the resulting monthly Fee. If the Client is determined by Quartile to qualify for a change in Fees as established by the Pricing Tiers in the Order Form; Clients will be automatically subject to changes in Fees in their next billing cycle, which may be without notice. For the avoidance of doubt, such Fees may include a variable processing and charging fee for demand side platform/media purchase Services. Unless otherwise set forth in an Order Form, all fees shall be due in advance of Services rendered, and shall be non-cancellable and non-refundable. All Fees shall be paid in US Dollars. In the event that any Fees are not timely received, any overdue payments shall be subject to interest charges computed at a periodic rate (to the maximum extent permitted by law) of 1.5% per month (18% per year) and Client shall pay all associated collection costs, including without limitation collection, court and attorneys’ fees. Quartile reserves the right to suspend or terminate Client’s access to any or all Services if Fees are past due.
2.2 - Payment
2.3 - Taxes
Quartile’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (“Taxes”). Client is responsible for paying all Taxes associated with Client’s payments hereunder. If Quartile has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 2.3, Quartile will invoice Client and Client will pay that amount unless Client provides Quartile with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. INTELLECTUAL PROPERTY
3.1 - License to Client Materials
Client grants Quartile a worldwide, non-exclusive license during the Term to copy, use, transmit and display its usage data and other materials provided to it by Client (“Client Materials”) as necessary for Quartile to provide the Services and for Quartile’s other business purposes. Client shall further provide to Quartile all marketplace and e-commerce platform credentials necessary to provide the Services.
3.2 - License to Services
Subject to the terms and conditions of this Agreement and payment of all Fees due hereunder, Quartile grants Client a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use the Services.
3.3 - Reservation of Rights
Subject to the limited license granted hereunder, Quartile and Quartile’s licensors own and reserve all of their respective right, title and interest in and to the Services, including, without limitation, all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“Quartile Materials”). No rights to the Services are granted to Client hereunder other than as expressly set forth in this Agreement and Client expressly agrees that (i) no aspect of the Services shall be considered a “works made for hire” as that term is defined by US Copyright law; and (ii) that no ownership in the Services shall be assigned or otherwise transferred to Client hereunder.
3.4 - Feedback
Client is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Services ("Feedback”). However, if Client does so, all right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and
exclusive property of, Quartile upon its creation.
3.5 - Usage Restrictions
Client will not (a) make the Service available to anyone other than users, or use the Service for the benefit of anyone other than Client, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property, publicity or privacy rights, (d) use the Service to store or transmit any virus, malware or other malicious code, (e) interfere with or disrupt the integrity or performance of the Service or data contained therein, (f) attempt to gain unauthorized access to the Service or any related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (h) copy the Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Service, (j) access the Service in order to build a competitive or substantially similar product or service, (k) reverse engineer decompile, disassemble, mimic or screen-scrape the Service; (l) create any derivative work based on the Service except as expressly authorized herein; or (m) obscure, remove or alter any proprietary rights or other notices on the Service. Further, Client shall not include in his Quartile account any existing clients that work directly with Quartile or that worked directly with Quartile for the previous 12 months. Notwithstanding anything to the contrary herein, Quartile may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 3.2 if Client breaches or threatens to breach the restrictions in this Section or creates other security or legal concerns. Client hereby agrees that Quartile will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Client’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
3.6 - Technical Restrictions
Client shall not exceed the access to or use of Services detailed in the relevant documentation or as otherwise provided by Quartile in an Order Form. If Quartile believes that Client has attempted to exceed or circumvent these limitations, Quartile may suspend or block Client’s access to the Services. Quartile may monitor Client’s use of the Services, including to ensure Client’s compliance with this Agreement.
3.7 - Open Source Software
The Services may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge (“Open Source Software”). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between Client and the applicable licensor of the Open Source Software and Client shall comply with the applicable Open Source Software license.
3.8 - Third Party Materials
Services may utilize third party software or source code, including without limitation Open Source Software and APIs and other software and data from third party e-commerce platforms or advertising technology companies (“Third Party Materials”). Quartile has no control over Third Party Materials. Accordingly, Quartile is not responsible or liable for any Third Party Materials. While Quartile has no obligation to monitor Third Party Materials, Quartile may remove or modify such Third Party Materials in its discretion, including without limitation to comply with Law. Client agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.
3.9 - Trademarks
Quartile grants Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use Quartile’s names, logos, designs, and other trademarks incorporated into the Services (“Quartile Marks”) during the Term and solely for the purposes of displaying such notice as part of the Services or as otherwise agreed on an Order Form or in writing by Quartile. Client recognizes the validity of the Quartile Marks and Quartile's ownership and title thereto. Any goodwill derived from the use of the Quartile Marks by Client shall inure to the benefit Quartile. Client will not challenge the Quartile Marks, or Quartile’s ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement. Client shall execute such documents as may be reasonably requested by Quartile, or required by law, to establish Quartile's sole and exclusive ownership and rights in the Quartile Marks, or to obtain registration thereof. Client agrees to use the Quartile Marks consistent with the highest standards of quality so as to protect and maintain the Quartile Marks and Quartile’s rights therein. To this end, Quartile shall have the right to revoke the license granted in this Section and/or to review and approve the manner of use of the Quartile Marks, and Client agrees to modify use of any Quartile Marks which do not meet Quartile’s standards. Notwithstanding the foregoing, Client may not use any Quartile Marks in any manner implying any partnership with, sponsorship by, or endorsement by Quartile.
4. CONFIDENTIALITY & PRIVACY
4.1 - Confidentiality
Each Party agrees that the business, technical and financial information of the other Party that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of the disclosing Party (“Confidential Information”). Quartile’s Confidential Information includes the Quartile Materials. Each Party shall use a reasonable degree of care to safeguard the other Party’s Confidential Information in its possession or control. Confidential Information does not include information that a Party can show by pre-existing written evidence (i) was previously rightfully known to the receiving Party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving Party; (iii) is disclosed to the receiving Party by a third party without breach of any separate nondisclosure obligation; (iv) is independently developed by the receiving Party; or (v) is required to be disclosed pursuant to a judicial order or third party subpoena provided that the receiving Party provides written notice to the disclosing Party in order for the disclosing Party to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena. Neither Party shall disclose the terms of this Agreement, except as required by law, or to its potential investors, investors, attorneys and other professional advisors bound to obligations of confidentiality at least as restrictive as those contained herein. The Parties hereby agree that the disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving Party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
4.2 - Privacy
5. REPRESENTATIONS & WARRANTIES
5.1 - Mutual Warranties
Each Party represents and warrants to the other Party that: (i) it has the power and authority to enter into this Agreement; and (ii) this Agreement is a valid and binding obligation of such Party.
5.2 - Quartile Warranties
Quartile represents and warrants that it will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. For any breach of a warranty set forth in this Section 5.2, Client’s sole and exclusive remedy is termination of this Agreement.
5.3 - Client Services
Quartile shall have no liability for Client’s business or any Client product or service, or any Client campaigns or advertising (“Client Service”). Client acknowledges and agrees that Client shall review the results of the Services and make changes and add disclaimers directly on product pages, in each case, as Client deems necessary or appropriate, and that Client, not Quartile, is an expert with respect to the Client Services. Client shall not use the Services in any manner implying any partnership with, sponsorship by, or endorsement by Quartile. Client shall not suggest or imply that Quartile is the author of or otherwise responsible for the views or content of the Client Service. Neither Client nor the Client Services shall disparage Quartile or the Services. All Client Services shall be offered in compliance with applicable law.
5.4 - Client Materials Warranties
Client represents and warrants that (i) the Client Materials, and the receipt, collection, use and provision thereof, shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) the Client Materials were received, collected, used and provided to Quartile in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions; (iii) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with, its receipt, use and/or provision of the Client Materials; (v) that none of the Client Materials contain any personally identifiable information or persistent identifiers from individuals under the age of 13; and (vi) the Client Materials are true and accurate in all respects.
5.5 - Further Client Warranties
Client further represents and warrants that (i) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the Services, Client Materials, Quartile Materials and Client Services; (ii) it will not do anything that will make the Services subject to any open source or similar license which creates an obligation to grant any rights in the same; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Services; (iv) in the event of any security breach or unauthorized access to any the Services, Client Materials, Quartile Materials and Client Services, Client will immediately investigate such breach and notify Quartile in writing, and, unless otherwise notified by Quartile, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of Quartile, all at Client’s cost; and (v) Client, Client’s use of the Services, the Client Materials and the Client Services will comply with all laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.
5.6 - DISCLAIMERS
EXCEPT AS EXPRESSLY PROVIDED HEREIN, (A) QUARTILE DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND (B) THE SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. QUARTILE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ERROR-FREE OR UNINTERRUPTED OPERATION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. QUARTILE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY THIRD PARTY MATERIALS OR THIRD-PARTY VENDORS, PARTNERS, E-COMMERCE PLATFORMS OR HOSTING PROVIDERS. QUARTILE DOES NOT GUARANTEE ANY PARTICULAR FINANCIAL RESULTS OR PROMISE ANY GROWTH IN SALES OR THE CLIENT SERVICES GENERALLY, AND ITS SERVICES SHOULD NOT BE USED AS FINANCIAL, INVESTMENT OR LEGAL ADVICE.
6.1 - Quartile Indemnification
Quartile will defend, indemnify and hold harmless Client from and against any damages, liabilities and costs (including reasonable outside attorneys’ fees) incurred by Client, to the extent directly arising from any third party claim that the authorized use by Client of the Services infringes any U.S. copyright or trade secret (“IP Claim”). Notwithstanding the foregoing, Quartile shall have no liability or obligation hereunder with respect to any IP Claim arising directly or indirectly from (a) the use of the Services in combination with products, services, software, data or systems not provided by Quartile; (b) any modification or unauthorized use of the Services or any breach of this Agreement by Client; (c) any Client Materials or Client Service; (d) instructions or directions provided by or on behalf of Client; (e) any Open Source Software or other Third Party Materials; or (f) the failure to use corrections provided by Quartile (collectively, “Infringement Exclusions”). If the Services become the subject of any IP Claim that does not fall within the Infringement Exclusions, Quartile may, at its option (a) obtain for Client the right to continue using the affected component of the Services; or (b) replace or modify the affected component of the Services. If options (a) and (b) are not reasonably available, Quartile may immediately terminate this Agreement or the applicable Order Form upon written notice to Client. This Section 6.1 states Quartile’s sole and exclusive liability with respect to any actual or alleged infringement of intellectual property, privacy or publicity rights by the provision or use of the Services.
6.2 - Client Indemnification
Client will defend, indemnify and hold harmless Quartile from and against any damages, liabilities and costs (including reasonable outside attorneys’ fees) incurred by Quartile, to the extent directly arising from any third party claim related to (a) the Client Materials, Client Services or any other Client products and services; (b) Client’s negligence, willful misconduct, breach of this Agreement, or violation of law.
6.3 - Indemnification Process
The Party seeking indemnification shall promptly notify the indemnifying Party of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact the indemnifying Party’s indemnification obligations, unless the indemnifying Party is materially impacted thereby. The indemnifying Party shall have sole control over the defense of a claim, provided that the indemnified Party may participate in the defense, at its cost. All settlements of indemnification claims require the consent of the indemnified Party.
7. LIMITATION OF LIABILITY
EXCEPT FOR CLIENT’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF SECTIONS 3-5 OR INDEMNITY OBLIGATIONS, NEITHER PARTY SHALL BE HELD LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR ANY LOSS OF PROFIT, LOSS OF CONTRACTS, LOSS OR DAMAGE TO REPUTATION AND/OR GOODWILL, AND LOSS AND CORRUPTION OF DATA, ARISING IN ANY MANNER FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT, OR OTHER CAUSE OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL QUARTILE’S TOTAL AGGREGATE LIABILITY TO THE CLIENT EXCEED THE TOTAL FEES PAID TO QUARTILE WITHIN THE PRIOR TWELVE (12) MONTHS UNDER THE ORDER FORM UNDER WHICH THE DISPUTE AROSE.
8. TERM & TERMINATION
8.1 - Term
The term of this Agreement shall commence on the Effective Date and automatically renew on a month-to-month basis, unless otherwise specifically noted otherwise in the comments of the Order Form, in each case unless terminated hereunder (“Term”).
8.2 - Termination
Quartile may, in its sole discretion, either (a) terminate this Agreement immediately for breach or threatened breach by Client of Sections 3-5 of this Agreement, or (b) terminate this Agreement, or suspend or terminate Client’s or any user's access to the Services, at any time for any reason or no reason, with or without notice. Without limiting the preceding sentence in any way, if Quartile terminates this Agreement under clause (b) of the preceding sentence, Quartile will endeavor to provide Client with prior notice of termination but shall have no liability under this Agreement for failure to do so. Either Party may immediately terminate this Agreement due to the insolvency of the other Party or the material breach of the other Party if such breach is not cured within ten (10) days after receiving written notice thereof. Except with respect to Client’s termination for Quartile’s breach of this Agreement, termination by Client may be effected only by and upon use of a termination button and follow on conversation with Quartile’s account team, which method of termination may be changed from time to time. Notice of Termination is required 30 days prior to next renewal Term. For the avoidance of doubt, no refunds shall be due on Termination.
8.3 - Obligations on Termination
Upon termination, Client shall cease all access to the Services and remove all access granted to Quartile from all pertinent marketplaces and APIs. Client shall thereafter be responsible for its own accounts on any marketplaces. Client shall not be entitled to any refund in connection with any termination of this Agreement and shall promptly pay any outstanding fees due (including any pro rata fees for any partial months). Upon expiration or termination of this Agreement, each Party shall return, or, if directed by the other Party, destroy, all Confidential Information of the other Party. Any Section of this Agreement which by its nature would survive such expiration or termination shall so survive.
9.1 - Governing Law & Jurisdiction
This Agreement and the transactions contemplated hereby shall be governed by and construed under the laws of the State of New York without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising out of or in relation to this Agreement shall be brought in the federal or state courts of New York County, New York.
9.2 - Relationship of the Parties
The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
9.3 - Modifications
This Agreement may change at any time. We will make such changes by posting them on https://go.quartile.com/terms-and-conditions. You should check this link for such changes frequently. Your continued access of the Services after such changes demonstrates your acceptance of those changes.
9.4 - Publicity
Client grants Quartile the right to use Client’s logos or trademarks in any case studies or marketing or publicity materials and on its website to identify Client as a customer that uses the Services.
9.5 - Entire Agreement and Severability
This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the Parties with respect thereto, including any non-disclosure agreements signed by the Parties. No additional or conflicting terms set out on Client order, invoice, statement or other document, or contained in any “shrinkwrap,” “clickwrap” or “browsewrap” agreements, are binding. If any provision of this Agreement are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.6 - Force Majeure
Except for any Fees due hereunder, neither Party shall not be liable for any delay in performing or failure to perform its obligations hereunder where such delay or failure results from any cause beyond its reasonable control, including, without limitation, cyber-attacks, public health emergencies, pandemics or epidemics, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., e-commerce platform, marketplace or host providers) or labor disputes.
9.7 - Assignment
Except to an affiliate or in the event of a merger, acquisition or other change of control, neither Party may assign this Agreement without the prior written permission of the other Party, and any attempt to do so is void. This Agreement shall be binding on any permitted successors and assigns. Quartile may use third party freelancers, subcontractors and other vendors to perform the Services; provided, however, that Quartile shall not be responsible of the acts and omissions of such parties unless their wrongdoing was the result of Quartile error.
9.8 - Notices
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing to the addresses listed above and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
9.9 - Headings; Interpretation
The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”
9.10 - Export
The Parties shall comply with all applicable export and import control laws and regulations, and, in particular, shall not export or re-export the Services without all required United States and foreign government licenses.