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Terms of service

Effective date: [to be provided: effective date]

These terms govern how organisations access and use AdCharter. AdCharter is operated by [to be provided: company legal name], a Wyoming [to be provided: type of company] (“Programz” or “Provider”). The organisation that uses AdCharter is the “Customer”.

The person who creates an organisation in AdCharter, subscribes to a plan or otherwise accepts these terms does so on behalf of that organisation and confirms that they have the authority to bind it. If you do not have that authority, or your organisation does not agree to these terms, do not accept them and do not use AdCharter.

The Data Processing Agreement (the “DPA”) forms part of these terms. Our privacy policy explains how we handle personal data.

These terms have three parts: the Key terms, the Additional terms and the Standard Terms (Sections 1 to 13), which are based on the Common Paper Cloud Service Agreement. Together they are the “Framework Terms”; with the Order Form for Customer’s plan, they form the “Agreement” between Provider and Customer. Words that start with a capital letter have the meanings given in the Key terms or in Section 13 (Definitions).

Key terms

The Key terms take the place of the Common Paper Cover Page (Order Form and Key Terms). They set the Variables used in the Standard Terms.

Parties and service

  • Provider: [to be provided: company legal name], a Wyoming [to be provided: type of company], which operates AdCharter (“AdCharter by Programz”).
  • Customer: the organisation named in the AdCharter account, identified by the company name and billing details given at checkout or in the Order Form.
  • Cloud Service: AdCharter, a web application for planning, briefing, producing, approving and launching advertising on Meta (Facebook and Instagram) and for reviewing its performance, available at https://adcharter.app, including its connections to Third-Party Platforms (see Additional terms A.1).
  • Order Form: the plan Customer chooses in the Cloud Service, including any extra users and top-ups it buys there, together with the business details in these Key Terms; or, for sales-assisted and Enterprise customers, a written order form or quote accepted by both parties. Plan limits are shown on the pricing page and in the Cloud Service.
  • Order Date: the date Customer’s subscription starts: when Customer completes checkout (including with a discount code that covers the full price) or, for sales-assisted customers, when Provider activates the organisation or on the date stated in the Order Form.
  • Effective Date: the date Customer first accepts these terms. This version of the terms applies from [to be provided: effective date].

Subscription, fees and support

  • Subscription Period: one month from the Order Date. The subscription renews automatically for further one-month periods until it is cancelled.
  • Non-Renewal Notice Date: Customer may cancel at any time before the end of the current Subscription Period, in the billing settings of the Cloud Service or by email to [to be provided: support email address]. Cancellation takes effect at the end of the current Subscription Period. Provider must give notice of non-renewal at least 30 days before the end of the current Subscription Period.
  • Fees: the fees for Customer’s plan, extra users and top-ups as shown on the pricing page or in the Cloud Service when Customer buys them, or as stated in a written Order Form. Fees are in US dollars and exclude taxes. A discount code applies for the duration stated with the code; after that, the standard Fees apply. Provider may change the Fees for future Subscription Periods by giving at least 30 days’ notice.
  • Payment Process:
    • Automatic payment (default): Customer authorises Provider to charge Customer’s payment method on file through Stripe monthly in advance, at the start of each Subscription Period, and when Customer upgrades its plan (pro rata) or buys extra users or top-ups, for immediate payment without further approval.
    • Pay by invoice (only for organisations that Provider has agreed to invoice manually): Provider will invoice Customer monthly in advance, and Customer will pay each invoice within 30 days of the invoice date.
  • Use Limitations: the limits of Customer’s plan (such as brands, users, briefs per month, launched ads per month and storage), as increased by any extra users and top-ups Customer buys, and the file types and sizes the Cloud Service accepts as described in the Documentation.
  • Technical Support: email support at [to be provided: support email address] on business days. Provider aims to reply within 2 business days; this is a target, not a guaranteed response time.
  • SLA: none. During early access, Provider does not offer a service level agreement, uptime commitment or service credits.

Liability, claims and law

  • General Cap Amount: the Fees paid or payable by Customer to Provider in the 12-month period immediately before the claim.
  • Increased Claims:
    • breach of Section 3 (Privacy and security);
    • breach of Section 10 (Confidentiality), excluding any data or security breaches.
  • Increased Cap Amount: two times (2x) the Fees paid or payable by Customer to Provider in the 12-month period immediately before the claim.
  • Unlimited Claims: an Indemnifying Party’s indemnification obligations under Section 9 (Indemnification).
  • Provider Covered Claims: any action, proceeding or claim that the Cloud Service, when used by Customer according to the terms of the Agreement, violates, misappropriates or otherwise infringes upon anyone else’s intellectual property or other proprietary rights.
  • Customer Covered Claims: any action, proceeding or claim that:
    • the Customer Content, when used according to the terms of the Agreement, violates, misappropriates or otherwise infringes upon anyone else’s intellectual property or other proprietary rights;
    • results from Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer); or
    • arises from advertising that Customer or its Users create, approve or launch using the Cloud Service, including a claim that the advertising, its content or its targeting is unlawful or misleading or breaches the terms or policies of a Third-Party Platform.
  • Additional Warranties: By Customer: Customer will comply with the terms and policies of each Third-Party Platform it connects to the Cloud Service (Additional terms A.1) and with the acceptable use rules (Additional terms A.6). By Provider: none.
  • Governing Law: the laws of [to be provided: governing law].
  • Chosen Courts: [to be provided: competent courts].
  • Notice Address: for Provider: [to be provided: company address], or by email to [to be provided: email address for legal notices]. For Customer: the email addresses of Customer’s Org admins in the Cloud Service, or the address stated in a written Order Form.

Documents and policies

  • DPA: the Data Processing Agreement, including the list of sub-processors. The DPA forms part of the Agreement.
  • Security Policy: Provider will use commercially reasonable efforts to secure the Cloud Service from unauthorised access, alteration or use and other unlawful tampering, and will apply the security measures described in the DPA.
  • Prohibited Data: Customer is not authorised to submit Prohibited Data.

Additional terms

These Additional terms are specific to AdCharter and are part of the Key Terms. Where they conflict with the Standard Terms (Sections 1 to 13), these Additional terms prevail.

A.1 Meta and other platforms

AdCharter connects to services run by other companies, such as Meta (Facebook and Instagram), Slack and Google sign-in, and uses Stripe for payments (each a “Third-Party Platform”).

  • Platform terms. When Customer connects Meta, Customer must comply, and must ensure that its Users comply, with the Meta terms and policies that apply to advertising, including the Meta Terms of Service, the Meta Commercial Terms, the Self-Serve Ad Terms and the Meta Advertising Standards. The same applies to the terms and policies of any other Third-Party Platform that Customer connects.
  • Authority to connect. Customer authorises Provider to access the ad accounts, Pages, Instagram accounts, pixels and Slack workspaces that its Users connect, on Customer’s behalf and only to provide the Cloud Service. Customer is responsible for ensuring that the User who connects them is authorised to do so.
  • Customer’s advertising. Customer is solely responsible for its advertising: the ads and their content, targeting, audiences, budgets, schedules, bids and spend, and their compliance with Applicable Laws (including advertising, consumer protection and data protection laws). Ad spend is billed by Meta to the owner of the ad account and is not part of the Fees.
  • Provider acts on instructions. The Cloud Service creates or changes campaigns, ad sets, ads and creatives in Customer’s ad accounts only when a User instructs it to, for example by launching an approved launch brief. Provider publishes what Customer approves and does not review ads for legal or policy compliance. Customer should check its ads in Meta Ads Manager.
  • Platforms make their own decisions. Third-Party Platforms may review, reject or remove ads, restrict or disable accounts, and change, limit or withdraw their APIs, permissions or features at any time. Provider is not responsible for those decisions. If a change by a Third-Party Platform affects the Cloud Service, Provider may change or remove the affected features; where the change is outside Provider’s reasonable control, this is not a breach of Section 6.3 (From Provider).
  • No warranty for third-party services. Third-Party Platforms are provided by those companies under their own terms and privacy policies, not by Provider, and without any warranty from Provider. Provider does not guarantee the approval, delivery, reach, cost or results of any ad. Performance data is shown as reported by Meta and may be delayed, revised or incomplete.
  • Use of platform data. Provider uses the data it receives from Third-Party Platforms only to provide the Cloud Service to Customer, as described in the DPA and the privacy policy. Customer can disconnect a Third-Party Platform at any time in the brand settings. How Meta data is deleted is described on the data deletion page.

A.2 Plans, limits and extras

  • Each plan includes the limits shown on the pricing page and in the Cloud Service, such as the number of brands and users, briefs per month, launched ads per month and storage. These limits are Use Limitations.
  • All invited users count toward the user limit, including people acting through Task Links (see A.5) from the time they are invited or assigned. Content creators without an active account count only once they activate their account.
  • When a limit is reached, the Cloud Service blocks the action concerned (for example, new briefs, new launches or new uploads) until Customer buys a top-up, upgrades, reaches the next month or, for storage, frees up space. Admins are warned when 80% of the storage is used.
  • When the user limit is reached, an Org admin can add users for the extra-user fee shown in the Cloud Service. The fee is added to the subscription only after the Org admin confirms it.
  • Top-ups add capacity (such as briefs, launched ads or storage) on the terms shown when they are bought.
  • Upgrades take effect immediately and are charged pro rata for the rest of the current Subscription Period. Downgrades take effect at the end of the current Subscription Period and are only available once Customer is within the smaller plan’s limits.

A.3 Cancellation, failed payments and data

  • Cancellation takes effect at the end of the current Subscription Period. Fees already paid are not refunded, except as Section 4.1 (Fees) allows.
  • After the subscription ends, Customer’s organisation is read-only for 30 days (the “Read-Only Period”): Users can view and export Customer Content but cannot make changes. Customer can reactivate its subscription during the Read-Only Period.
  • At the end of the Read-Only Period, unless Customer has reactivated, Provider permanently deletes the Customer Content, including files. Copies in backups are deleted as the backups expire, within up to 30 days.
  • If a payment fails, Stripe retries it for about two weeks, during which Customer keeps full access. If payment still fails, the organisation becomes read-only until the outstanding amount is paid. This does not limit Section 2.2 (Suspension).
  • If Provider terminates the Agreement under Section 5.3 (Termination) or Section 12.13 (Export controls), Provider may withhold read-only access. Customer may instead ask for an export of its Customer Content during the Read-Only Period, and Provider will provide it unless Applicable Laws prevent this.
  • Org admins can export Customer Content (briefs, comments, approvals and performance data as JSON or CSV, with download links for files) at any time during the subscription and the Read-Only Period. Customer is responsible for exporting anything it wants to keep before it is deleted.

A.4 Deleting accounts and organisations

  • An Org admin can delete Customer’s organisation after cancelling. All Customer Content, including files, is permanently removed 30 days after the deletion request; copies in backups are deleted as described in A.3.
  • A User can delete their own account. Their name in the history of the Cloud Service is then shown as “Deleted user”; the briefs, approvals and other Customer Content they created remain with Customer.
  • Deleted data cannot be restored.
  • Customer may assign tasks to people who do not have an active account, such as client approvers, freelance editors and content creators. They receive a personal email link to the task, valid for 7 days (a “Task Link”), which lets them act on the task without signing in.
  • People acting through a Task Link are Users acting on Customer’s behalf. Customer is responsible for choosing whom to invite and assign, for the email addresses it uses, for having the right to share the relevant Customer Content with them, and for everything done through a Task Link.
  • Actions taken through a Task Link are recorded under the person it was sent to, even if the link was forwarded. Customer should send Task Links only to the intended person and ask them not to forward them.

A.6 Acceptable use

Customer will not, and will not allow any User to, use the Cloud Service to:

  • create, store or launch advertising that is unlawful, false or misleading, or discriminatory, or that breaches the terms or policies of a Third-Party Platform;
  • upload or share content without the necessary rights, licences and consents, including the consent of people who can be identified in photos or videos where Applicable Laws require it;
  • send spam or other unsolicited messages through the invitation, Task Link or notification features;
  • upload malware or other harmful code, or probe, scan or overload the Cloud Service;
  • share a login between several people, or otherwise get around plan limits (for example, by creating extra organisations to avoid them); or
  • harass, threaten or harm anyone, or infringe anyone’s privacy.

Provider may remove content that breaches this section and may suspend access under Section 2.2 (Suspension).

A.7 Changes to these terms

  • Provider may update these terms from time to time. Provider will notify Customer of material changes by email to Customer’s Org admins or in the Cloud Service at least 30 days before they take effect. Changes that are not material (such as clarifications), and changes required by law, may take effect sooner. The current version and its effective date are always published on this page.
  • If Customer does not agree to a material change, Customer may cancel its subscription before the change takes effect; the previous terms then continue to apply until the end of the current Subscription Period. Otherwise, Customer’s continued use of the Cloud Service after the change takes effect means that Customer accepts the updated terms.
  • Changes do not apply to disputes that arose before they took effect, and do not change the negotiated terms of a written Order Form during its current Subscription Period.

A.8 Early access

  • AdCharter is in early access. Provider continues to add, change and improve features and may remove features, but Section 6.3 (From Provider) still applies to the general functionality of the Cloud Service during each Subscription Period.
  • Features identified as beta, preview or early access are Beta Products (see Section 12.7).
  • There is no service level agreement (see the Key Terms).

A.9 Business use and minimum age

  • AdCharter is for business use only. Customer accepts these terms in the course of its trade, business or profession, and not as a consumer.
  • No one under 16 may use AdCharter. The person who accepts these terms on Customer’s behalf must also be old enough to enter into a binding contract.

A.10 Order of precedence

If parts of the Agreement conflict, they apply in this order:

  1. the DPA, for Personal Data (see Section 3.1);
  2. a written Order Form accepted by both parties, for that Order Form only;
  3. the Key Terms, including these Additional terms;
  4. the Standard Terms (Sections 1 to 13).

1. Service

1.1 Access and use

During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes. For an agency, these purposes include planning, producing, approving and launching advertising for its own clients and inviting those clients as Users. If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.

1.2 Support

During the Subscription Period, Provider will provide Technical Support as described in the Order Form (see the Key Terms).

1.3 User accounts

Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

1.4 Feedback and usage data

Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyse Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.

1.5 Customer content

Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings, including sending Customer Content to the Third-Party Platforms that Customer connects when a User instructs it to (for example, uploading creatives to Meta to launch ads). Customer is responsible for the accuracy and content of Customer Content.

1.6 Machine learning

Provider will not use Customer Content to develop, train, or enhance artificial intelligence or machine learning models. Provider may use Usage Data for these purposes only if (a) the Usage Data is aggregated, and (b) Provider has used commercially reasonable efforts consistent with industry standard technology to de-identify it. Nothing in this section will reduce or limit Provider’s obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws. If the Product includes features that use artificial intelligence or machine learning, information generated by these features may be incorrect or inaccurate; these features are not human and are not a substitute for human oversight.

2. Restrictions and obligations

2.1 Restrictions on Customer

(a) Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product, other than Users acting on Customer’s behalf; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorisation; (vii) use the Product to develop a competing service or product; (viii) use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorised access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.

(b) Use of the Product must comply with all Documentation, Use Limitations and the acceptable use rules in the Additional terms.

2.2 Suspension

If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.

3. Privacy and security

3.1 Personal data

The DPA forms part of this Agreement and applies whenever Provider processes Personal Data on Customer’s behalf that is governed by GDPR or other Applicable Data Protection Laws, so Customer does not need to sign a separate data processing agreement. Each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.

3.2 Prohibited data

Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorised by the Order Form or Key Terms.

3.3 Security

Provider will comply with the Security Policy set out in the Key Terms.

4. Payment and taxes

4.1 Fees

Unless the Order Form specifies a different currency, all Fees are in US dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.

4.2 Invoicing

For a Payment Process with invoicing, Provider will send invoices for usage-based Fees in arrears and for all other Fees in advance, in each case according to the Payment Process.

4.3 Automatic payment

For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorises all such charges. In this case, Provider will make a copy of Customer’s bills or transaction history available to Customer (for example, through the billing settings of the Cloud Service).

4.4 Taxes

Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemises and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.

4.5 Payment

Customer will pay Provider Fees and taxes in US dollars, unless the Order Form specifies a different currency, according to the Payment Process.

4.6 Payment dispute

If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.

5. Term and termination

5.1 Order Form and Agreement

For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date.

5.2 Framework Terms

These Framework Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Framework Terms have ended.

5.3 Termination

Either party may terminate the Framework Terms or an Order Form immediately:

  • (a) if the other party fails to cure a material breach of the Framework Terms or an Order Form following 30 days’ notice;
  • (b) upon notice if the other party (i) materially breaches the Framework Terms or an Order Form in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

5.4 Force majeure

Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued prior to termination.

5.5 Effect of termination

Termination of the Framework Terms will automatically terminate all Order Forms governed by the Framework Terms. Upon any expiration or termination:

  • (a) Customer will no longer have any right to use the Product, except for read-only access during the Read-Only Period described in Additional terms A.3.
  • (b) Provider will delete Customer Content at the end of the Read-Only Period, or within 30 days of Customer’s earlier request (for example, a request to delete its organisation), as described in Additional terms A.3 and A.4.
  • (c) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
  • (d) Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment and taxes).

5.6 Survival

(a) The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and usage data), Section 1.6 (Machine learning), Section 2.1 (Restrictions on Customer), Section 4 (Payment and taxes) for Fees accrued or payable before expiration or termination, Section 5.5 (Effect of termination), Section 5.6 (Survival), Section 6 (Representations and warranties), Section 7 (Disclaimer of warranties), Section 8 (Limitation of liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of rights), Section 12 (General terms), Section 13 (Definitions), Additional terms A.3 and A.4 as they relate to Customer Content after expiration or termination, and the portions of the Key Terms referenced by these sections.

(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy and security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.

6. Representations and warranties

6.1 Mutual

Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organised, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties.

6.2 From Customer

Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.

6.3 From Provider

Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Cloud Service during the Subscription Period.

6.4 Provider warranty remedy

If Provider breaches the warranty in Section 6.3 (From Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Cloud Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranty in Section 6.3 (From Provider).

7. Disclaimer of warranties

Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations and warranties) do not apply to any misuse or unauthorised modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations and warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.

8. Limitation of liability

8.1 Liability caps

(a) Except as provided in Section 8.4 (Exceptions), each party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount.

(b) If there are Increased Claims, each party’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount.

8.2 Damages waiver

Except as provided in Section 8.4 (Exceptions), under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

8.3 Applicability

The limitations and waivers contained in Sections 8.1 (Liability caps) and 8.2 (Damages waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.

8.4 Exceptions

The liability cap in Section 8.1(a) does not apply to any Increased Claims. Section 8.1 (Liability caps) does not apply to any Unlimited Claims. Section 8.2 (Damages waiver) does not apply to any Increased Claims or a breach of Section 10 (Confidentiality). Nothing in this Agreement will limit, exclude, or restrict a party’s liability to the extent prohibited by Applicable Laws, including liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation.

9. Indemnification

9.1 Protection by Provider

Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable legal fees and other legal expenses, that arise from the Provider Covered Claims.

9.2 Protection by Customer

Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable legal fees and other legal expenses, that arise from the Customer Covered Claims.

9.3 Procedure

The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defence and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own lawyers only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

9.4 Changes to Product

If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.

9.5 Exclusions

(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorised by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorised use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.

(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorised use of the Customer Content, including use in violation of this Agreement.

9.6 Exclusive remedy

This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

10. Confidentiality

10.1 Non-use and non-disclosure

Except as otherwise authorised in the Agreement or as needed to fulfil its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

10.2 Exclusions

Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorised to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.

10.3 Required disclosures

Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.

10.4 Permitted disclosures

Recipient may disclose Discloser’s Confidential Information to Users, employees, advisers, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).

11. Reservation of rights

Except for the limited licence to copy and use Software and Documentation in Section 1.1 (Access and use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer content), Customer retains all right, title, and interest in and to the Customer Content.

12. General terms

12.1 Entire agreement

This Agreement (including the Key Terms, the DPA and any Order Form) is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer’s use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorised Provider representative, regardless of what such terms may say.

12.2 Modifications, severability and waiver

Except as described in Additional terms A.7 (Changes to these terms), any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

12.3 Governing law and chosen courts

The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.

12.4 Injunctive relief

Despite Section 12.3 (Governing law and chosen courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

12.5 Non-exhaustive remedies

Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

12.6 Assignment

Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganisation, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

12.7 Beta products

If Provider gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 6.3 (From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider’s discretion with or without notice.

12.8 Logo rights

Provider may identify Customer and use Customer’s name and logo in marketing to identify Customer as a user of Provider’s products and services. Customer may ask Provider to stop at any time by emailing [to be provided: email address for legal notices], and Provider will stop new uses within a reasonable time.

12.9 Notices

Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

12.10 Independent contractors

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorised to bind the other to any liability or obligation.

12.11 No third-party beneficiary

There are no third-party beneficiaries of this Agreement.

12.12 Force majeure

Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.

12.13 Export controls

Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organised under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the US government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.

12.14 Government rights

The Cloud Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the US Government will be governed solely by the terms of this Agreement and all other use is prohibited.

12.15 Anti-bribery

Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the US Foreign Corrupt Practices Act and the UK Bribery Act 2010.

12.16 Titles and interpretation

Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.

12.17 Signature and electronic acceptance

This Agreement may be accepted electronically, including by creating an organisation or subscribing to a plan in the Cloud Service after being shown these terms, and may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.

13. Definitions

13.1 Defining Variables

Variables have the meanings or descriptions given in the Key Terms. However, if the Order Form and the governing Framework Terms omit or do not define a Variable, the default meaning will be “none” or “not applicable” and the correlating clause, sentence, or section does not apply to that Agreement.

13.2 Defined terms

  • “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
  • “Agreement” means the Order Form between Provider and Customer as governed by the Framework Terms.
  • “Applicable Data Protection Laws” means the Applicable Laws that govern how the Cloud Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
  • “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
  • “Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.
  • “Cloud Service” means the product described in the Key Terms.
  • “Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the non-public terms of any written Order Form (such as individually agreed Fees). Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.
  • “Cover Page” means the Key Terms together with any Order Form. The Cover Page identifies Provider and Customer, incorporates these Standard Terms, and is accepted electronically or signed by the parties.
  • “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
  • “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product, including content created in the Product and data that the Product imports from Third-Party Platforms on Customer’s behalf (such as ad performance data), but excludes Feedback. The Personal Data in Customer Content is “Customer Personal Data” in the DPA.
  • “Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.
  • “Documentation” means the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.
  • “Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.
  • “Feedback” means suggestions, feedback, or comments about the Product or related offerings.
  • “Fees” means the applicable amounts described in an Order Form.
  • “Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
  • “Framework Terms” means these Standard Terms, the Key Terms between Provider and Customer, and any policies and documents referenced in or attached to the Key Terms (including the DPA).
  • “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 in the United Kingdom.
  • “High Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
  • “Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.
  • “Key Terms” means the “Key terms” and “Additional terms” sections of these terms, which include the key legal details and Variables for this Agreement.
  • “OFAC” means the United States Department of the Treasury’s Office of Foreign Assets Control.
  • “Order Form” means (a) the plan, extra users and top-ups that Customer selects and pays for in the Cloud Service, together with the business details and Variables in the Key Terms; or (b) a written order form or quote accepted by both parties, which may set different business details, such as the plan, its limits, the Fees or the Payment Process. An Order Form includes the policies and documents referenced in or attached to it.
  • “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
  • “Product” means the Cloud Service, Software, and Documentation.
  • “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s licence numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
  • “Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.
  • “Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.
  • “Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
  • “Standard Terms” means Sections 1 to 13 of these terms, which are based on the Common Paper Cloud Service Agreement Standard Terms Version 2.1, as modified and adapted by Provider.
  • “Task Link” has the meaning given in Additional terms A.5.
  • “Third-Party Platform” has the meaning given in Additional terms A.1.
  • “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.
  • “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account, including people acting through a Task Link.
  • “Variable” means a word or phrase that is capitalised and given a meaning in the Key Terms, such as Subscription Period or Governing Law.

Licence and attribution

These terms are based on the Common Paper Cloud Service Agreement Standard Terms Version 2.1, available at https://commonpaper.com/standards/cloud-service-agreement/2.1/, and used under the Creative Commons Attribution 4.0 International licence (https://creativecommons.org/licenses/by/4.0/). Programz has modified and adapted the text. Common Paper has not reviewed or endorsed these terms.