1) Search ENGINE Marketing Service. This agreement provides Customer access to a proprietary online subscription service consisting of a consolidated web-based portal for tracking, reporting, managing
2) USE OF SERVICES.
a). Actonia Support. Actonia will provide customer support for the Services at no additional charge, as further detailed
b). Customer Responsibilities. Customer (i) is solely responsible for Customer Information, (ii) must use commercially reasonable efforts to prevent unauthorized access to the Services, and notify Actonia promptly of any such unauthorized access, and (iii) may use the Services only in accordance with its ‘Getting Started User Guide’ and applicable law.
c). Customer Restrictions Customer may not (i) sell, resell, rent or lease the Service, (ii) 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 rights, (iii) interfere with or disrupt the integrity or performance of the Service, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks.
3) PAYMENT Terms. Customer must pay all fees (US$) that are due within 30 days of receiving an invoice.
4) WARRANTY/SERVICE LEVEL AGREEMENT and REMEDY.
a). Warranty. Actonia warrants to Customer (i) that commercially reasonable efforts will be made to maintain the online availability of the Services for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages, force majeure and Customer technology issues), (ii) the features and functionality of the Services will change over time but will not materially decrease during the term of an order, (iii) and the customer support will not materially degrade.
– 99.5 – 95% = 10% of monthly fee.
– 94.99 – 90% = 25% of monthly fee.
– Less than 90% = 50% of monthly fee.
b). Limited Remedy and Disclaimer. Customer’s exclusive remedy and
5) MUTUAL CONFIDENTIALITY.
a). Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).
b). Protection of Confidential Information. The Recipient must use the same degree of care to protect the Confidential Information and to protect it from disclosure to third-parties that it uses to protect its confidential information (in no event less than reasonable care) and not use any Confidential Information of Discloser for any purpose (other than within the scope of this agreement). The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors
c). Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.
6) Proprietary Rights.
a). Reservation of Rights by Actonia. The software; web processes, visualizations, designs; and other technologies provided by Actonia as part of the Services are the proprietary property of Actonia and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Actonia. Actonia reserves all rights not expressly granted.
b). Customer Restrictions. Customer may not (i) reverse engineer the Service, (ii) remove or modify any proprietary marking or restrictive legends in the Service; or (iii) access the Service to build a competitive product or service, or copy any feature, function or graphic of the Service for competitive purposes.
c). Customer Information. All uploaded information under Customer’s account remains the sole property of Customer, as between Actonia and Customer (Customer Information). Customer grants Actonia a non-exclusive term license to use, modify, copy and prepare derivate works of the Customer Information for the purpose of Actonia performing under this agreement. Customer may at any time download its Customer Information from the Services. Actonia may use during and after this agreement all aggregate non-identifiable data in the Services for purposes of enhancing the Services, technical support
7) LIMITATION OF LIABILITY. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, AND LOSS OF DATA OR INFORMATION) relating TO OR ARISING OUT OF this agreement. Except for section 9 below,
8) TERM, Termination
a). Term. This agreement continues until all orders have expired or are earlier terminated under Section 8(b) of this agreement (Term).
b). Mutual Termination for Material Breach. If either party is in breach of any material term of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c). Actions upon Termination. If Customer terminates this agreement for material breach on the part of Actonia, Actonia will refund to Customer any prepaid and unused fees. Upon termination of this agreement for any reason, Customer must pay Actonia for any unpaid amounts, and destroy or return all property of Actonia. Upon
d). Download of Customer Provided Information. Before
e). Suspension of Service for Violations of Law. Actonia may immediately suspend the Services and remove applicable Customer Information if it in good faith believes that, as part of using the Services, Customer may have violated a law. Actonia may try to contact Customer in advance, but it is not required to do so.
9) DEFENSE OF INFRINGEMENT CLAIMS. Actonia will defend or settle any third party claim against Customer to the extent that such claim alleges that the Actonia technology used to provide the Service violates a copyright, patent, trademark or other intellectual property right, if Customer, promptly notifies Actonia of the claim in writing, cooperates with Actonia in the defense and allows Actonia to solely control the defense or settlement of the claim. Costs.Actonia will indemnify Customer from any infringement claim defense costs Actonia incurs, Actonia negotiated settlement amounts and court awarded damages. Process. If such a claim appears likely, then Actonia may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Actonia determines that none of these are reasonably available, then Actonia may terminate the Service and refund any prepaid and unused fees. Exclusions. Actonia has no obligation for any claim arising from:
10) Governing Law. This agreement is governed by the State of Illinois, substantive laws, without regard to conflict of laws principles. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party.
11) THIRD PARTY LINKS. The Services may contain links to third-party websites (Linked Sites). The Linked Sites are not under
12) MISCELLANEOUS OTHER TERMS. This agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless both parties sign it or it is agreed to as part of an Actonia online contracting process. Neither party may assign or transfer this agreement or an order to a third party, except that the agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Actonia rejects additional or conflicting terms of a form purchasing document. If there is an inconsistency between this agreement and an order, the order prevails. Any terms that by their nature survive termination or expiration of this agreement, will survive. Neither party is liable for force majeure events. Actonia may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Actonia, which use must be in accordance with Customer’s trademark guidelines and policies.
Last Updated March 8, 2017
Archived versions of the terms can be found here.