Updated February 2020
These Terms of Service (“Terms”) form a contract between
(1) Ad-Lib Digital Ltd, 43 Whitfield Street, London W1T 4HD ("Ad-Lib"), and
(2) the company or other legal entity accepting these Terms (“Customer”)
that governs the Customer’s access to and use of the creative marketing platform ("Service") provided by Ad-Lib for digital marketing asset and template storage, configuration, management and publishing ("Content"). These Terms also govern Ad-Lib and the Customer’s obligations with respect to the security and processing of personal data when using the Service. Terms relating to the processing of Personal Data are incorporated into these Terms and attached as “Annex 1: Data Protection Terms.” These Terms apply equally to any software that is used to provide the Service or made available to the Customer in order to facilitate the Service (“Software”).
Modifications or additions to these Terms may be stated in your Order Form for the Service, which shall be signed by an authorized officer of Ad-Lib and of the Customer, to be valid.
In the event of a conflict between these Terms and a valid Order Form, the Order Form shall take precedence.
The Customer may use the Service only for business purposes and only within the range of the Customer’s normal business activities, on a non-exclusive basis, solely in strict compliance with these Terms, the documentation that accompanies the Service (the “Documentation”), and all applicable laws, including without limitation, data privacy laws and regulations applicable to the Customer.
With the exception of content shared publicly as facilitated by features built into the Service, all access to the Service must happen through personal user accounts. When registering a personal user account, the Customer shall provide correct, accurate, current, and complete information about each user as part of the Ad-Lib onboarding process.
User accounts are personal and must not be shared between individuals. Account information and passwords shall be kept confidential. The Customer, or any person given access to the Service by the Customer, shall not authorize any third-party to access or use the Service, unless and to the extent Ad-Lib has provided mechanisms within the Service that clearly allows such use. Ad-Lib will not be liable for any loss or damage arising from any unauthorized use of personal user accounts.
The Customer is fully responsible for any use of the Service that is conducted through personal user accounts created by the Customer or anyone working for the Customer, regardless of whether or not the Customer is aware of, or have consented to, such use.
The Customer is responsible for informing anyone who uses the Service for or on behalf of the Customer of the above obligations.
The Customer is obligated to notify Ad-Lib immediately of any known or suspected unauthorized use of the Service.
One person, as identified on the Order Form for the Service, will be the primary contact person for all communication in relation to the Service. The Customer is responsible for updating Ad-Lib of reassignment of this role, and/or any changes in email, phone, or address information. Ad-Lib is not liable for any results of communication not reaching its intended recipient as a result of this information being out-of-date.
Ad-Lib does not claim ownership of any Content or data that is transmitted, stored, created, or processed through any personal user accounts or otherwise by the Customer.
The Customer represents and warrants that it has all the rights to the Content necessary for the Customer to use the Service and grant the rights in this provision, and that the transmission, storage, or use of the content doesn't violate any law or these Terms.
If the Customer cancels the Service, the Customer may request a one-time transfer of all Content and data, including metadata generated in the system. The format of this data export can be discussed on an individual basis. The Customer must have a valid subscription to the Service for the full duration of the transfer.
Ad-Lib will clearly indicate where the Customer’s Content and data will be stored when the Customer orders the Service. Ad-Lib stores the Customer’s Content and data in accordance with best industry practices and applicable information security laws and regulations. If the Service is cancelled, Ad-Lib may store the Customer’s Content and data for up to 90 days before it is permanently deleted from all Ad-Lib’s systems.
The Service includes access to Technical Support via an email alias: [email protected] Technical Support is available to all users. Technical Support shall use reasonable efforts to respond to all support tickets as soon as possible.
The Customer is responsible for channeling support requests as described in this provision and in accordance with Section 3, and for escalating any support incidents to Ad-Lib through the primary contact person, cf. Section 3.
Ad-Lib makes no guarantees as to the availability or uptime of the Service (unless you are eligible for the SLA as described below), but will at all times use reasonable efforts to maintain the performance, stability, and uptime of the Service.
The Customer’s use of the Service may be governed by Ad-Lib’s Service Level Agreement (“SLA”), which is agreed within each customer’s contract.
If the Customer’s plan is covered by the SLA, the Customer’s remedies for any failure of the Service are listed, exhaustively, in the SLA. If the SLA does not list a remedy for a given failure, it has no remedy. Service credits gained pursuant to the SLA are forfeited upon termination of this agreement.
Ad-Lib does not charge separately for network traffic costs incurred as a result of using the Service. We reserve the right to suspend the Service should network traffic exceed fair use for a significant period of time. Before suspending the Customer’s account(s), we will reach out to notify the Customer of the excessive use, and offer an upgrade of the Customer’s data plan to increase the network quota.
This provision (“AUP”) sets out the rules governing the Customer’s use of the Service. In the event that Ad-Lib suspects that the Customer is in breach of this AUP, Ad-Lib may suspend the Customer’s access to the Service without notice. Suspension caused by the Customer’s non-compliance with this AUP or other provisions set out in these Terms, does not affect the Customer’s obligation to pay for the Service in accordance with any applicable Order Forms. The Customer is not entitled to SLA credits for any period of suspension.
The Customer shall not use the Service to harm others or the Service. For example, the Customer shall not use the Service to harm, threaten, or harass another person, organization, or Ad-Lib. The Customer may not use the Service to attempt to build a similar service or website or to build a product using similar features or functions.
In addition, the Customer shall not, and shall not assist or encourage any third party to:
Ad-Lib reserves the right, in its sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit Ad-Lib’s response to a future complaint.
The Fees for the Service are agreed on a per customer basis. The price stated for the Service excludes all taxes and charges. The Customer is responsible for any taxes and all other charges incidental to using the Service (for example, data charges and currency exchange settlements). The Customer shall pay the Fees in the currency specified on the relevant Order Form. Late payment interest shall accrue to any late payments, in accordance with relevant local legislation. Ad-Lib may choose to suspend the Customer’s access to the Service until payment has been made.
If the Customer has chosen to pay with credit card, Ad-Lib will store and charge the card according to the specified billing schedule.
Ad-Lib reserves the right, at its sole discretion, to make necessary unscheduled deployments of changes, updates, or enhancement to the Service at any time.
Ad-Lib may add or remove functionality or features and suspend or stop a Service.
If Ad-Lib at any time plans to undertake a large system update that causes downtime of more than 1 hour, we will notify affected customers in advance.
Information that the Customer gains access to in connection with the Service shall be treated as confidential information and shall not be disclosed to any third party without the consent of Ad-Lib.
The confidentiality obligations set out in this provision shall not prevent the disclosure of information if the Customer is obligated by law to disclose information. Ad-Lib shall, if possible, be notified prior to such disclosure.
Information shall not be considered confidential to the extent that the information was already known to the Customer or is accessible to the public.
The Customer undertakes to take all necessary precautions to prevent unauthorised persons from gaining access to, or knowledge of, confidential information. The confidentiality obligation shall apply to the Customer’s employees, subcontractors and other third parties who act on behalf of the Customer.
The confidentiality obligation shall continue to apply after the expiry or termination of a customer relationship.
Ad-Lib provides the service "as-is" and "as available". Ad-Lib makes no representations or warranties of any kind, and all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage or trade practice are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by Ad-Lib, its suppliers and licensors.
The Customer shall defend and indemnify Ad-Lib against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content, or the Customer’s use of the Service in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Ad-Lib's actions); or (b) violates applicable law.
Ad-Lib shall defend and indemnify the Customer from any claim that the Service as such infringes the intellectual property rights of a third party. If such claim is set forth, Ad-Lib shall have the option, in Ad-Lib’s discretion, to either settle the claim immediately, procure for the Customer the continued and uninterrupted use of the Service, or replace the allegedly infringing part of the Service with a non-infringing part of equal functionality.
The Customer is obligated to notify Ad-Lib if the Customer receives a claim or demand that is subject to Ad-Lib’s indemnification obligation, and Ad-Lib shall have the same obligation towards the Customer.
Ad-Lib may terminate the contract with immediate effect, if the Customer is in material breach of these Terms or any other terms and conditions applicable to the use of the Service. If the contract is terminated for breach, you are not entitled to any reimbursements.
Ad-Lib may terminate the contract for convenience by 30 days’ written notice to the Customer. If Ad-Lib terminates the contract for convenience, the Customer is entitled to a refund that is proportional to the remaining Service period already paid for.
Notwithstanding anything else in these terms of service to the contrary, the aggregated maximum liability in relation to the services of Ad-Lib, its affiliates, officers, employees, agents, suppliers and licensors collectively, to customer or any other person or entity using the Service, whether in contract, tort (including negligence), breach of warranty or otherwise, shall be limited to an amount equal to three months of service fees.
Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will Ad-Lib or its suppliers be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or inability to use software or otherwise and even if Ad-Lib or its suppliers or licensors have been advised of the possibility of such damages.
Neither party may transfer or assign its rights and obligations under this contract without the other party’s prior written consent, which shall not be unreasonably withheld. The same shall apply if a party is demerged into several companies or in case of assignment to a subsidiary or another company within the same group, but not if a party is merged with another company.
These Terms shall be governed by and interpreted in accordance with UK law.
In case of a dispute between the parties which cannot be solved by negotiations, either party shall be entitled to have such dispute finally decided by the UK courts. Nevertheless, Ad-Lib has the right to instigate legal proceedings in the country where you have your place of residence or perform business activities.
Ad-Lib will revise these Terms from time to time, and these Terms shall at all times apply as they are available on the Ad-Lib website.
Should you have any questions concerning these Terms, please get in touch with us: [email protected]
ANNEX 1: DATA PROTECTION TERMS
The terms in this Annex (“Data Protection Terms”) govern the processing of Personal Data when the Customer utilises Ad-Lib’s Software and Services.
If any of the terms below are not defined in the Terms above or an individual Order Form, they have the definitions below.
“General Data Protection Regulation” or “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Privacy Laws” means European Data Protection Laws, including the GDPR and any national Data protection laws implementing the European Data Protection Laws which applies to the Customer.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subprocessor” means other processors used by Ad-Lib to process data.
The terms “data subject”, “processing”, “processor”, and “supervisory authority” as used herein have the meanings given in the GDPR and the terms “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
The Customer and Ad-Lib agree that the Customer is the controller of Personal Data and Ad-Lib is the processor of such data, except when (a) the Customer acts as a processor of personal data, in which case Ad-Lib is a subprocessor or (b) stated otherwise in the Order Form. Ad-Lib will process Personal Data only on documented instructions from the Customer. If the Customer is a processor, the Customer warrants to Ad-Lib that the Customer’s instructions, including appointment of Ad-Lib as a processor or subprocessor, have been authorised by the relevant controller.
Ad-Lib may process Personal Data otherwise than on the Customer’s instructions if Ad-Lib is required to do so by law to which Ad-Lib is subject. In such a case, Ad-Lib shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
As a controller, the Customer is solely responsible for making an independent determination as to whether the technical and organizational measures for a Service meets the Customer’s requirements, including any of its security obligations under the GDPR or other applicable Privacy Laws and regulations.
The Customer represents and warrants that it has a legal basis to process the relevant personal data. Furthermore, the Customer represents and warrants that the Content is not unlawful and does not infringe any rights of a third party. In this context, the Customer indemnifies Ad-Lib of all claims and actions of third parties related to the processing of Personal Data without a legal basis under the Terms.
Ad-Lib shall inform the Customer without undue delay if he considers that the processing of Personal Data in accordance with these Data Protection Terms violates at any time applicable Privacy Laws. The Customer shall then be entitled to suspend the execution of the processing of Personal Data until Ad-Lib confirms or changes them.
Ad-Lib will provide such reasonable assistance as and information to the Customer, as Ad-Lib is obliged to under applicable Privacy Laws. This includes a duty to provide assistance and information with respect to the Customer’s security of processing, personal data breach notification and communication to the Data Subject, data protection impact assessment and prior consultation to the relevant supervisory authority.
The parties acknowledge and agree that:
Ad-Lib shall comply with the Customer’s reasonable requests to assist with requests from data subjects. If Ad-Lib receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with a Service where Ad-Lib is a data processor or subprocessor, Ad-Lib will redirect the data subject to make its request directly to the Customer. Customers are responsible for responding to any such request including, where necessary, by using the functionality of the Service.
Ad-Lib will not transfer Personal Data outside the country in which the Customer originally delivered it to Ad-Lib without the explicit written consent of the Customer. Personal Data delivered to a location inside the European Economic Area (“EEA”) may be transferred to other locations within the EEA.
In case of transfer of Personal Data outside the EEA or to an international organization, Ad-Lib shall, when deemed relevant by the Customer, collaborate with the Customer in conjunction with the execution of data transfer agreements based on the EU Standard Contractual Clauses for the transfer of Personal Data to Processors established in Third Countries – Contract Template for Data Transfer Agreement (Decision 2010/87/EU), or any replacement or alternative clauses approved by the European Commission.
Ad-Lib may transfer Personal Data outside the EEA or to an international organisation if required to do so by law to which Ad-Lib is subject. In such a case, Ad-Lib shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
Further, Ad-Lib will enter into any written agreements, declarations or statements that are necessary (in the Customer’s reasonable determination) to comply with Privacy Laws concerning any cross-border transfer of Personal Data, whether to or from Ad-Lib.
Ad-Lib will implement appropriate technical and organizational measures in such a manner that Ad-Lib’s processing of Personal Data will meet the requirements of applicable Privacy Laws and ensure the protection of the rights of the data subject.
Ad-Lib will develop, implement and maintain security procedures and practices to protect against accidental or unlawful destruction, loss, alteration or unauthorized disclosure of and access to Personal Data (hereinafter “Personal Data Breach”). Any use of the information systems and the Personal Data that contravenes established routines, instructions from the Customer or applicable Privacy Laws, as well as any security breaches, shall also be treated as a Personal Data Breach.
Ad-Lib may amend the security measures from time to time, but warrants that the measures comply with applicable Privacy Laws.
Ad-Lib will provide training, as appropriate, regarding the privacy, confidentiality and information security requirements set forth in these Data Protection Terms to all persons acting under the authority of Ad-Lib with access to Personal Data.
Ad-Lib shall keep confidential all Personal Data and other confidential information. Ad-Lib shall further ensure that each person under the authority of Ad-Lib, whether employed or for hire, having access to or being involved with the processing of Personal Data under these Data Protection Terms (i) undertakes a duty of confidentiality and (ii) is informed of and complies with the obligations set herein. The duty of confidentiality shall also apply after termination of the Terms.
Ad-Lib shall without undue delay notify the Customer upon becoming aware of a Personal Data Breach.
Such notice will summarize in reasonable detail the effect of the breach on the services, and the corrective action taken to be taken by Ad-Lib.
Ad-Lib will cooperate fully with the Customer in all reasonable and lawful efforts to prevent, mitigate or rectify such Personal Data Breach.
Ad-Lib shall have in place routines and systematic processes to follow up Personal Data Breaches which shall include re-establishing the normal state of affairs, eliminating the cause of the Personal Data Breach and preventing its recurrence.
Where required under the GDPR, Ad-Lib shall maintain all records required by Article 30(2) and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
In order to confirm compliance with these Data Protection Terms, the Customer shall be at liberty to conduct an audit by assigning an independent third party who shall be obliged to observe confidentiality in this regard. Any such audit will follow Ad-Lib’s reasonable security requirements, and will not interfere unreasonably with Ad-Lib’s business activities.
The audit may only be undertaken after the Customer has provided two weeks written notice to the Ad-Lib.
The findings in respect of the performed audit will be discussed and evaluated by the parties and, where applicable, implemented accordingly as the case may be by one of the parties or jointly by both parties.
All costs relating to the audit will be borne by the Customer.
The parties’ economic liability for damages suffered by data subjects or other physical persons and which results from a party’s breach of Privacy Laws is exhaustively governed by GDPR Article 82.
The limitation of liability in Clause 17 does not apply to liability arising from GDPR Article 82.
At all times during the term of the Customer’s subscription to the Service, the Customer will have the ability to access, extract and delete Personal Data stored in the Service.
Ad-Lib will retain Personal Data that remains stored in a Service in a limited function account for up to 90 days after expiration or termination of Customer’s subscription so that Customer may extract the data. After the retention period ends, Ad-Lib will disable the Customer's account and delete the Personal Data within an additional 90 days, unless Ad-Lib is permitted or required by applicable law to retain such data or authorized in these Data Protection Terms.
ANNEX 2: THIRD-PARTY INTEGRATIONS