Acceptance Of Terms
Odiense, Inc. (“Odiense” or “we”) offers its Service (as defined below) to you through its website located at
https://www.odiense.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business, or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
The revised terms and conditions will become effective thirty (30) days after we send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to
support@odiense.com .As part of the registration process, you will identify an administrative user name and password for your account (“Account”). You may use the administrative user name and password to invite other users to your Account.
1 DEFINITIONS
As used in these Terms of Use, unless expressly otherwise stated or evident in the context, the following capitalized terms shall have the following meaning
1.1 “Odiense Software” means Odiense.com proprietary advertising software, including any changes, updates, upgrades, modifications and enhancements made thereto, and any related modules, add-ons, tools, browser plugins and applications as well as any documentation relating thereto all of the foregoing to the extent offered by Odiense.com
1.2 “Ad Account” means a predefined advertising account registered with Odiense and associated with the advertising account(s) on Facebook or Google.
1.3 “Advertising Spend” means all charges payable by the Customer for all advertising conducted through Odiense Platform with respect to an Ad Account in Facebook or Google.
1.4 “Affiliate” means an entity which is a subsidiary or parent of, or under common control with, the Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50) per cent or more of the voting shares in such entity, or that other entity is able to direct the Party’s affairs or is able to appoint a majority of the members of the board of directors or an equivalent body.
1.5 “Agreement” means these Terms of Use together with the Order Form and any appendices thereto which shall govern the provision of the Service by Odiense and the use of the Service by the Customer.
1.6 “Content” means any advertising content created by or on behalf of Customer for an advertising campaign or otherwise.
1.7 “Facebook” means the social media site known as Facebook and all advertising platforms in Facebook’s ecosystem including but not limited to Facebook, Instagram, Messenger and WhatsApp and Facebook audience network.
1.8 “Google” means the Google and all advertising platforms in Google’s ecosystem including but not limited to search and display
1.9 “Order Form” means the order form through which the Customer orders the Service and which, by reference, incorporates these Terms of Use. In the event of a conflict between these Terms of Use and the Order Form or any other appendices thereof, the Order Form shall prevail unless expressly stated otherwise in the Terms of Use or any other appendices thereof.
1.10 “Party” means Odiense or Customer separately. Customer and Odiense together are referred to as the “Parties”.
1.11 “Service” means the provision of Odiense Software available on a software as a service (SaaS) basis via the Internet on Odiense’s tool and website and/or by any other means via which the service is made available or can be used as well as any ancillary services that may be available and provided by Odiense in relation to Odiense Software. In addition, the Service includes Odiense’s support centre documentation, support chat and newsletter, which contain information about the Service such as information on updates and new features in the Service
1.12 “Terms of Use” means these terms and conditions applicable to the use of the Service. Odiense may update and modify the Terms of Use from time to time and by continuing to use the Service after having been informed of the modification by written notice of Odiense, the Customer accepts the modification and the revised Terms of Use shall enter into force after 30 days have elapsed from the notice of revised Terms of Use. All material changes to these Terms of Use shall be informed to the Customer via email prior to them becoming effective.
2 THE SOFTWARE AND SERVICE
2.1 The Software consists of SaaS advertising tools and documentation provided by Odiense, and used by Customer via Internet. The Service can be used to create, manage and optimize advertising campaigns on Facebook and Google.
2.2 The Software is designed to help the Customer in creating, managing and optimizing its advertising campaigns but the Customer remains responsible for how the Customer uses the Software and for achieving the intended goals and results of Customer’s advertising campaigns. Odiense Software operates between the Customer, Google, and Facebook platforms on which the advertising campaigns are being conducted, and it is the responsibility of the Customer to ensure that the output and results of the Software meet Customer’s expectations and requirements.
2.3 Odiense may provide additional help to the Customer if previously asked by Customer. If required, the Customer must provide Odiense with access to the necessary information in order to ensure delivery of the Software help.
2.4 The Customer will not use the Software for unlawful purposes or against the terms and policies of Facebook and Google in which advertising campaigns are carried out. All Customer sub-contractors shall be considered the equivalent to Customer and as such, all sub-contractor actions on the Software are subject to these Terms and Conditions.
3 RIGHTS OF USE AND PROPERTY RIGHTS
3.1 In this agreement, ‘Intellectual Property Rights’ includes all patents, rights to inventions, copyrights and related rights, all other rights in the nature of copyright, design rights, trademarks, service marks, trade names, trade secrets, know-how, code, database rights, image rights, rights in goodwill or to sue for passing off and other rights in the nature of intellectual property rights (whether registered or unregistered of whatever nature whenever and howsoever arising) and all applications for the same, rights to apply for and/or renew the same, extensions and revivals of the same, and all similar or equivalent rights or forms of protection which subsist or may subsist, now or in the future, anywhere in the world, including the right to sue for and recover damages for past infringements.
3.2 Customer acknowledges and agrees that the Software and other proprietary or Intellectual Property Rights of any nature whatsoever contained or represented therein are and remain the sole property of Odiense. Should new Intellectual Property Rights evolve or be developed by Odiense from the Software including, but not limited to, designs, inventions or processes as a result of the performance of its obligations under this agreement, Customer acknowledges that any such new Intellectual Property Rights shall be the property of Odiense.
3.3 As between parties, Customer is the sole owner of an will retain ownership of all right, title, and interest in and to (i) Customer’s pre-existing intellectual property and proprietary materials, (ii) all materials developed or created by Customer or its third party contractors or agents in connection with Customer’s management of its advertising accounts or otherwise with this Agreement, including, without limitation, all Customer content, and (iii) Customer’s Confidential Information as defined in section 4 hereof.
3.4 Customer warrants that it:
3.4.1 shall keep the Software secure and confidential and use all reasonable endeavors to prevent any unauthorized access to, or use of, the Software and, in the event of any such unauthorized access or use, promptly notify Odiense thereof;
3.4.2 shall retain the Software under its exclusive control and establish and maintain adequate security measures to safeguard the Software and any copies thereof from access or use by any unauthorized body or person;
3.4.3 shall not provide or otherwise make available any part of the Software in any form to any person other than in accordance with the License, without prior written consent from Odiense;
3.4.4 shall not access all or any part of the Software in order to build a product or service or feature which competes with the Software’;
3.4.5 shall not attempt to obtain, or assist third parties in obtaining, unauthorized access to the Software;
3.4.6 shall not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or its accompanying documentation in any form or media or by any means;
3.4.7 in case the Customer comments the Software or provides suggestions for improving the Software, Odiense will ask for written permission in case the Customer agrees that all such comments, suggestions and ideas thereof will be fully assigned to Odiense and hence Odiense shall own rights to use and incorporate them into the Software;
3.4.8 shall not copy, duplicate, translate, adapt, vary, modify or otherwise reproduce in any manner the Software or its look and feel or Odiense’s Confidential Information, except as specifically provided herein for backup and disaster recovery purposes or as required by any applicable law, rule or regulatory requirement; and
3.4.9 shall not modify, alter, decompile, disassemble, reverse engineer, attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever.
4 CONFIDENTIALITY
4.1 Each party agrees to keep and treat as confidential any information that it may receive from the other in whatever form (‘Confidential Information’), and to limit access to such information to its officers, directors, members, managers, employees, agents and contractors (under a similar express duty of confidentiality) only to the extent as necessary so as to perform its and their respective obligations under this agreement, and not divulge the same to any third party without prior written consent of the other party.Confidential information shall include, without limitation:
4.1.1 Personal information, computer programs, code, algorithms, know-how, methodology, trade secrets, formulas, processes, ideas, inventions, designs, and other technical, business, pricing and fee schedules, and with respect to Odiense as Discloser, the Software’s operations, functionality, methodology, results, and look and feel.
4.2 Customer agrees to Odiense using both anonymous customer advertising data and performance metrics data related to the use of the Software to perform analysis both itself and via third parties so as to enhance its software provision, all such data to be treated as Confidential Information and in accordance with relevant data protection legislation.
4.3 Odiense and Customer shall take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information, and take appropriate steps to implement and enforce such confidentiality obligations.
4.4 Confidential Information shall not be deemed to include any information which:
4.4.1 is in the public domain or is available to the public at any time of disclosure to either party or comes into the public domain or becomes available to the public after disclosure otherwise than by reason of a breach of any of the undertakings contained herein;
4.4.2 is in either party’s possession from a third party, provided that the third party is, in so far as it is known to the receiving party, not prohibited from transmitting the information by a contractual, legal or fiduciary obligation to the receiving party or otherwise; or
4.4.3 either party is required by a court of law, other judicial body, regulatory or similar authority to disclose, provided, however, that either party shall, at the other’s expense, co-operate with the efforts of the other to protect the interests of the other party in respect of trade secrets, know-how or other similar proprietary information.
4.5 Neither party will exploit or make any commercial use of Confidential Information in whole or in part, during or after the duration of this agreement. Each party will delete or destroy copies of any Confidential Information then in their possession, and shall cause such party’s agents, contractors or representatives to delete or destroy copies of any Confidential Information at the termination of this agreement except where there is a need to retain such Confidential Information for regulatory purposes.
4.6 This obligation of confidentiality will remain in force beyond the cessation or termination of this agreement for a period of five (5) years.
4.7 The Customer agrees to act as a reference customer for Odiense’s Software. Such approval will give Odiense the right to include a reference to the Customer (or the partner of the Customer) and its logo on its website, marketing literature, labelling and in its promotional materials. Odiense may issue a press release announcing the formation of the relationship between the parties and in due course publish a case study on the partnership. The text of such press release, announcements and case study shall be mutually agreed to by the parties prior to publication, except that either party may re-publish information contained in a previously approved press release, including on a party’s website and in marketing materials.
5 DATA PROTECTION
5.1 If Odiense processes any personal data on Customer’s behalf when performing its obligations under this agreement, the parties record their intention that Customer shall be the data controller and Odiense shall be a data processor and in any such case:
5.1.1 The Customer expressly acknowledges and agrees that it is Customer’s obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to EU General Data Protection Regulation, GDPR), regulations and terms applicable to information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context (“Personal Data”) contained in the materials provided by the Customer for the purposes of the Service regardless of the country/state in which the Customer is based. The above mentioned includes, but is not limited to, complying with terms and restrictions related to Customer’s use of customer/contact databases and complying with any applicable privacy policies and cookie opt in policies.
6 FEE & TAXES
6.1 Unless no other fees are agreed upon and in the Agreement or in any amendment, Odiense’s fee is a defined percentage of customer’s advertising spend per ad account (which is connected to the Odiense Platform) calculated for previous month or as specified in the purchase order. The fee shall be invoiced after each calendar month unless otherwise specified in the Agreement.
6.2 The customer agrees there is a minimum monthly fee regardless of customer’s advertising spend for the month as defined in the purchase order.
6.3 Odiense will not change fees for the duration of this agreement as specified in the Fee section of the first page of the agreement and purchase order.
6.4 Odiense may change fees from time to time with a prior 30 day’s notice by emailing the email address associated with Customer’s account. The new fees will not affect previous term invoice.
6.5 Invoices shall be paid by either credit card or electronic funds transfer in cleared funds, free of deduction or setoff, to such bank account as Odiense may from time to time notify Customer in writing.
6.6 All payment shall, unless otherwise specified, be made in EUR.
6.7 The fees are exclusive of VAT and any other governmental taxes and levies. The Customer shall be solely responsible for VAT and other taxes and levies imposed by applicable laws and authorities in relation to the fees.
6.8 Notwithstanding any other rights that Odiense may have under this agreement, if Customer fails to pay any amount payable by it under this agreement, Odiense shall be entitled to charge interest of 12% per annum or maximum legal interest rate for late payment, whichever is less.
6.9 If Customer is authorized to use the Software in connection with Facebook and Google, the Software will be linked to one or more of Customer’s Facebook/Google advertising accounts as provided by Customer, and will manage all ad operations within these accounts. Prior to the start of a campaign, Customer shall establish billing credentials with Facebook and Google and Customer will be directly billed by Facebook and Google for the impression expense generated through the Software separately from the fees payable to Odiense. Customer agrees to timely pay Facebook and Google for such expenses.
7 TERMS & SUSPENSION
7.1 This agreement shall commence on the date of purchase order and shall continue until the term expires.
7.2 Odiense may terminate the Agreement and the use of the Software for convenience upon 30 days prior written notice by email.
7.3 Odiense may terminate this Agreement and the Customer’s use of the Software, if the Customer is in material breach of its obligations hereunder, and fails to remedy such breach within 14 days written notice given by the non-breaching party.
7.4 Upon termination for whatever reason, no paid fees will be returned by Odiense, and the Customer is obligated to pay the fees past due at the effective date of such termination. In case the agreed fees are not fully paid or the obligations set out herein are not otherwise followed by the Customer, Odiense reserves the right to terminate the Customer’s right to use the Software immediately.
7.5 Odiense may suspend the Support Services with immediate effect by serving a notice of suspension in writing if Customer is overdue with any payment for a minimum of 7 days. If Customer is overdue with any payment by a minimum of 30 days, Odiense may suspend Customer’s access to the Software.
7.6 Notwithstanding clause 7.5 above, either party may terminate this agreement upon written notice with immediate effect if the other party:
7.6.1 commits any material or continuing breach of any term of this agreement (including, without limitation, any failure to make payment) and fails to remedy that breach within 30 days after receipt of a request in writing from the other party to do so; such request to be served on the “Delegated Person” (stated in the Order Form) of the party in default and to contain a warning of the intention to terminate if the breach is not remedied;
7.7 In case the Customer wishes to terminate the Contract before its End Date, the Customer must inform Odiense via email minimum 30 days prior.
7.7.1 If the Contract does not have an end date and automatically extends monthly, the Client must inform Odiense of termination minimum 30 days prior, via email.
7.8 Termination of this agreement shall not act as a waiver of any breach of this agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this agreement.
7.9 Termination will be without prejudice to any rights and remedies that the terminating party may have in law or equity and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into force or continue in force on or after such termination.
7.10 Upon termination of this agreement the Customer shall pay to Odiense on demand all fees and charges then properly due and owing to Odiense, including all agreed costs incurred by Odiense which it is legally obliged to pay in connection with the performance of its obligations under this agreement.
8 LIMITATION OF LIABLITY
8.1 Clause 8 sets out the entire financial liability of Odiense (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising under or in connection with this agreement; in respect of any use made by the Customer of the Software; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
8.2 Customer assumes sole responsibility for advertising results obtained from the use of the Software, and for conclusions drawn from such use. Odiense shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Odiense by the Customer in connection with the Software, or any actions taken by Odiense at the Customer’s direction.
8.3 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
8.4 The Software is provided to the Customer on an “as is” basis.
8.5 No liability shall attach to Odiense in relation to the failure of any component or service provided by a third party in connection with the Customer’s use of the Software or as is required by the Software to perform its functions.
8.6 Nothing in this agreement excludes the liability of Odiense for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
8.7 Odiense shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, loss of revenue, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.
9 NOTICES
9.1 Notice or other communications given by one party to the other party under or in connection with this agreement shall be in writing, signed by or on behalf of the party giving it and served either by hand-delivery, pre-paid recorded delivery or special delivery to the same designated person(s) marked for their attention at the address shown on page one.
9.2 Any notice pursuant to this clause shall be deemed to have been served:
9.2.1 in the case of delivery by hand, at the time of delivery to the designated address;
9.2.2 in the case of pre-paid recorded delivery or special delivery, at 10am local time on the second day
9.2.3 provided that in each case where delivery by hand occurs after 6pm local time service shall be deemed to occur at 9am local time on the next day (excluding Sundays and public holidays).
10 MISCELLANEOUS
10.1 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
10.2 Should a provision of this agreement be held to be invalid or unenforceable that provision shall be deemed to be excluded but shall not invalidate any of the remaining provisions. The parties shall then use all reasonable endeavors to put in place a valid and enforceable replacement provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
10.3 Odiense will be under no liability to the Customer in respect of anything which may constitute breach of this agreement arising by reason of force majeure, including but not limited to, acts of God, accident, civil commotion, drought, explosion, embargo, fire, flood, ionising radiation, pandemic, perils of the air or sea, riot, acts of sabotage or terrorism, acts of central or local government or authorities.
10.4 This agreement may be altered, amended or repealed only in writing signed by both parties. Any written amendments or changes to this agreement created by a separate document and which are expressed to amend this agreement are automatically attached as an amendment hereto.
10.5 No failure or delay in exercising or relaxation by Odiense of any of the terms and conditions in this agreement shall constitute a general waiver of the relevant term, condition, right or power; and no partial or single exercise of any term, condition, right or power shall preclude any other or further exercise of some or any of Odiense’s other rights and remedies against the Customer. No waiver of any breach of any term of this agreement shall be construed as a waiver of a future breach of the same term or as authorizing a continuation of the particular breach, unless expressly agreed to in writing by the waiving party.
10.6 The parties to this agreement are independent contractors. Nothing in this agreement or the arrangements contemplated by it shall be deemed to constitute a partnership between the parties or, except as may be expressly set out herein, constitute either Party being appointed as the agent of the other Party for any purpose. Neither the Customer nor its agents have any authority to bind Odiense in any respect whatsoever.
10.7 Odiense may at any time assign, novate, charge, subcontract or deal in any other manner with any or all of its rights and obligations under this agreement, provided it gives written notice to the Customer.
10.8 The provisions of this agreement shall be binding upon all assignees, transferees or successors in title unless otherwise agreed in writing by the parties.
10.9 This agreement including its schedules sets out the entire agreement and understanding between the parties in respect of the provision of the Software and the Support Services. It supersedes all proposals, prior agreements and other communications between the parties relating to such products and services, whether in writing, email, oral or otherwise, and all past courses of dealing or industry custom. However, nothing shall hereby be construed as excluding or limiting either party’s liability for fraud or fraudulent misstatement.
10.10 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the Delaware law United States. The parties irrevocably agree that the courts of the United States of America have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
10.11 The parties acknowledge that this agreement is commercial in nature, and they expressly and irrevocably waive any claim or right which they may have to immunity (whether sovereign immunity or otherwise) for themselves or with respect to any of their assets in connection with an arbitration, arbitral award or other proceedings, immunity of any of their assets from pre- or post-judgment attachment or execution and immunity from the jurisdiction of any court or arbitral tribunal.
