BY SIGNING AN ORDER CONFIRMATION THAT REFERS TO THIS TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”), YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE ORDER CONFIRMATION.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER”, "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.

Welcome

BCode, Inc. (“BCode” or “we”) will provide you with account management services for your online paid media platforms through your own accounts, as described in any applicable Order Confirmation (the “Services”). In order to provide Services at a reasonable cost, BCode does not customize this standard Agreement.

  1. Privacy & Security; Disclosure

You agree to the terms of BCode's privacy and security policies, which may be viewed on the BCode website (the “Site”), and which may be modified by BCode in its reasonable discretion from time to time. During the course of this Agreement, information that is confidential or proprietary may be disclosed between us including but not limited to: software, technical processes, formulas, source code, sales, costs, other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”).

Except as provided below, neither of us shall make any disclosure of the other party’s Confidential Information to anyone other than our employees or contractors who have a need to know such information in connection with this Agreement, and who are bound by written agreements to protect the confidentiality of such information.  Each of us will notify our employees and contractors of their confidentiality obligations hereunder.

Confidential Information shall not include information that the receiving party can demonstrate (i) is, at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party, (ii) was known to the receiving party at the time of disclosure, (iii) is independently developed by the receiving party, or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party.

  1. Order Confirmations; Access to Services

BCode shall provide Customer with the Services described in any fully executed Order Confirmation.  Each Order Confirmation is deemed to incorporate all of the terms and conditions of this Agreement, and is also incorporated herein by reference.  To the extent any conflicts exist between this Agreement and an Order Confirmation hereunder, the terms of this Agreement shall control unless expressly stated otherwise in the Order Confirmation. In the event of a conflict between Order Confirmations, the terms of the newest (in chronological order) Order Confirmation shall control. BCode’s obligations with respect to the Services are contingent upon Customer’s compliance with its payment and other contractual responsibilities. Customer acknowledges that its failure to satisfy such obligations may impact BCode’s delivery of the Services.

  1. License Grant & Restrictions

Any technology BCode makes use of to perform the Services will be operated on your behalf. At your option, you may jointly access your accounts through our BCode Advisor software. Should you wish to do so, you shall be bound by the terms of the BCode Master Subscription Agreement, located at (https://bcode.io/master-subscription-agreement), which shall then be incorporated herein by reference. Your right to access such software shall terminate upon any termination of this Agreement.

  1. Your Responsibilities

You are solely responsible for all text, logos and images (“Customer Content”), all advertisements and any website reachable from the advertisements generated using the Services.  You hereby represent that (i) any Customer Content you provide is and shall be accurate, complete and current, (ii) you have all necessary rights to publish the Customer Content and create or have created advertisements, and (iii) all Customer Content complies with the requirements set forth by Google, Microsoft, Facebook and any other ad platform (collectively, the “Advertising Platforms”) on their respective websites with respect to the Google AdWords, Microsoft adCenter, Facebook Ads and similar programs (collectively, the “Ad Platform Programs”), including the trademark policies, editorial guidelines and creative limitations posted therein, and including such other websites and programs as may be included in the Services from time to time. You hereby authorize BCode to allow such Customer Content and advertisements to be published throughout the network of advertising channels operated by the Advertising Platforms and any other company network included in the Services from time to time, and their network of participating websites and other distribution outlets.  You further represent, warrant and covenant to BCode and its suppliers that (a) at all times you shall comply with all applicable law, (b) you will not generate, or encourage others to generate, automated or fraudulent impressions or clicks of advertisements on any Ad Network, (c) you are responsible for obtaining and maintaining accounts for use of the Ad Network Programs, and (d) your advertisements do not and will not advertise illegal activity or constitute illegal or fraudulent business practices in the jurisdiction in which the advertisements are displayed.

BCode may use the Customer Content or advertisements solely to provide you the Services and has no ownership rights therein.

  1. Account Information and Data

BCode does not own any keyword data, information, performance data, paid search campaigns or material that you submit to the Services in the course of using the Services (collectively, "Customer Data").  BCode may use Customer Data to provide the Services, which may include processing your Customer Data to provide the Services to you, and storing or hosting the Customer Data for access by you. Your private Customer Data is accessible only to you and persons explicitly authorized by you; data is NOT shared with other customers, or with any other third party; provided that BCode reserves the right to use your Customer Data in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings as long as such metrics, data and trends do not contain uniquely identifiable Customer Data.  You shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Customer Data.  BCode may be compelled to disclose your Customer Data to the applicable authorities in order to comply with governmental, court and law enforcement requests or requirements relating to the Services.  In such event, BCode will provide Customer with reasonable notice so that Customer may have an opportunity to seek a protective order or equivalent, and cooperate with Customer to the extent required to seek such order.

You are and shall remain the owner of all accounts with Advertising Platforms.  BCode is not a party to the financial relationship between you and the Advertising Platforms.  Any fees charged by BCode are for its Services and software offerings only.  Individual Advertising Platforms may provide financial incentives, sales contests and other incentive programs to BCode on the basis of customer satisfaction, ad spend under management, and/or other key metrics influenced by the BCode Services and software, and Customer Data is a part of these calculations.  In no event shall any Advertising Platform incentive program provided to BCode impact the financial terms or relationship that you enjoy directly with the Advertising Platforms.

 

  1. Intellectual Property Ownership

BCode alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to any BCode technology, BCode content and other BCode property used in delivering the Services. This Agreement is not a sale and does not convey to you any rights of ownership therein.

 

  1. Third Party Interactions

During use of the Services, you may purchase goods and/or services from, a third party that also requires activity and interaction with your Ad Network accounts. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. BCode and its licensors shall have no liability, obligation or responsibility for any such third party, including any termination by such third party of their provision of goods or services to you. BCode does not endorse any sites on the Internet that are linked through the Services, or any third party goods or services that are made available to you through or are otherwise incorporated into the Services (including any reporting tools). In no event shall BCode or its licensors be responsible for (and they hereby disclaim all liability for) any such content, products, services, or other materials on such sites or provided by such third parties. You recognize that certain third-party providers of ancillary software, hardware or services may require your agreement to other terms prior to your use thereof. Service features that interoperate with the Ad Network Programs depend on the continuing availability of such Ad Network Programs and any application programming interface ("API"). If an Ad Network, or any of their affiliates, or any other applicable third party ceases to make the Ad Network Programs, or other third party API or program, available on reasonable terms for the Services, BCode may cease providing such Services features and you shall have no payment obligations to BCode for such features for periods following such cessation.

  1. Billing and Payment of Fees

You shall pay all fees to your account in accordance with the fees and billing terms in the applicable Order Confirmation. BCode charges and collects in advance for the Services.  Payments are made on a monthly basis, and amounts owed are payable via automated recurring credit card payment or electronic deduction from a bank account. All payment obligations are non-cancelable and non-refundable. You must provide BCode with a valid credit card or bank automatic clearing house validation as a condition to signing up for the Services. You represent that you are authorized to provide any credit card or bank account information you use to sign up for the Services. BCode's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on BCode's income. You represent that all information provided in the Order Confirmation is complete and accurate, and that you will update this information within 30 days of any change to it. Any false contact information provided by you shall be deemed a material breach of this Agreement. If you believe your invoice is incorrect, you must contact BCode in writing within 30 days of the date of invoice with details regarding the inaccuracy to be eligible for an adjustment or credit.

All fees based off of paid media spend shall be based upon your aggregate spend across all paid media programs managed by BCode, including without limitation any Third Party Ad Platforms BCode manages on your behalf. Agreed to changes to the Services will be documented in an Order Confirmation and may result in an adjustment to your fees.  Any changes made in the middle of a billing month will be charged on a pro-rated basis. All pricing terms are the Confidential Information of BCode hereunder.

  1. Non-Payment and Suspension

In addition to any other rights granted to BCode herein, BCode reserves the right to suspend the Services if your account becomes delinquent. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum rate permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Services during any period of suspension. If you initiate the termination of this Agreement, except in the case of a material breach by BCode, you will be obligated to pay the balance due on your account for the applicable commitment period as described in the Order Confirmation computed in accordance with this Agreement.  If BCode terminates the Agreement pursuant to the provisions of Section 10 Term and Termination, you will also be obligated to pay the balance due on your account for the applicable commitment period as described in the Order Confirmation.  You agree that BCode may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

  1. Term and Termination

This Agreement commences on the Start Date and will continue as stated in the Order Confirmation. Any breach of your payment or other material obligations will be deemed a material breach of this Agreement. Upon any such breach, without limiting its ability to pursue other remedies, BCode may terminate this Agreement. The following sections shall survive any expiration or termination of this Agreement: 1, 3 – 10, and 12 – 18.

  1. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. BCode represents and warrants that it will provide the Services in a manner consistent with applicable industry standards.

  1. Disclaimer of Warranties

BCODE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, COMPLETE, ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (C) THE PRODUCTS, SERVICES, INFORMATION, LEADS OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO YOU "AS IS". ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BCODE AND ITS LICENSORS.

  1. Internet Delays

BCODE'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BCODE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

  1. Limitation of Liability

IN NO EVENT SHALL AGGREGATE LIABILITY FOR EITHER PARTY EXCEED THE GREATER OF (I) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO BCODE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $10,000.00. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. Notice

BCode may give notice by means of email to your e-mail address on record in BCode's account information, or by written communication sent by first class mail or pre-paid post to your address on record in BCode's account information.  You may give notice to BCode at any time by email ([email protected]), letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to BCode, in either case, addressed to the attention of: VP of Finance.  Any such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).

  1. Assignment; Change in Control

This Agreement may be assigned by either party (i) to a parent or subsidiary, or (ii) in connection with a sale of its business. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you to a direct competitor of BCode (as determined by BCode) shall entitle BCode to terminate this Agreement for cause immediately upon written notice.

  1. General

This Agreement shall be governed by Florida law, without regard to the conflicts of law provisions of any jurisdiction, and any disputes, actions, or claims arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Miami, Florida. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Confirmation, if applicable) shall add to or vary the terms of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and BCode as a result of this Agreement or use of the Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the parties in writing. This Agreement, together with any applicable Order Confirmation and any other document referenced herein, comprises the entire agreement between you and BCode and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  In the event that any of your Users are contractors to your organization, you agree that such contractors shall be required to comply with all applicable restrictions set forth in this Agreement, and you shall be fully liable for and indemnify BCode with respect to any failure of any contractor to so comply.

  1. Definitions

"Start Date" means the earlier of the date this Agreement is accepted by you or the date listed as the start date on the Order Confirmation; "Order Confirmation(s)" means the form evidencing the initial or any subsequent subscription for the Services, submitted through the Site or in written form; "User(s)" means your employees, contractors or agents who are authorized to receive the Services and have been supplied user identifications and passwords by you (or by BCode at your request).