Last Modified: April 11,2017
IMPORTANT – PLEASE READ CAREFULLY: THE TERMS CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND US AND APPLY TO YOUR USE OF THE SERVICE AND THE PROVISION BY US OF ALL SERVICES THEREUNDER. BY CLICKING ON THE “I AGREE” BUTTON OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, PLEASE DO NOT CREATE YOUR ACCOUNT OR OTHERWISE USE THE SERVICE.
WE RESERVE THE RIGHT TO MODIFY THE TERMS AT ANY TIME, AND EACH SUCH MODIFICATION SHALL BE EFFECTIVE UPON POSTING ON OUR WEBSITE. ALL MATERIAL MODIFICATIONS WILL APPLY PROSPECTIVELY ONLY. YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR AGREEMENT TO BE BOUND BY, AND YOUR ACCEPTANCE OF, THE TERMS, AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE. THEREFORE, IT IS IMPORTANT FOR YOU TO REVIEW THE TERMS REGULARLY.
1. Authorized Use
Subject to the terms and conditions of the Terms, we grant to you a non-exclusive, non-transferable, limited license, without the right to grant sublicenses, to access and use the Service solely for your internal business purposes or, if you are an individual, your own individual personal purposes. You will not use the Service other than as expressly permitted above. Without limiting the foregoing, you (i) may not (or cause or permit any third party to) modify, change, adapt, reverse engineer, disassemble, decompile or create any derivative work based upon the Service or underlying software or technology, or disclose, assign, rent, sublicense or otherwise transfer or dispose of the Service or underlying software or technology to any third party, (ii) may not publish or provide any results of any tests run, accounts or other information regarding the Service to any third party without our prior written consent or permit any third party to perform such tests, and (iii) may not delete, remove or obscure any of our proprietary notices on the Site or any related documentation or other materials provided or disclosed by us to you.
This Site is offered and available to users who are 13 years of age or older. By using this Site, you represent and warrant that you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site.
You are required to register and create a unique, password-protected account (“Account”) in order to access and use the Service. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented any registration information submitted. You are responsible for maintaining the confidentiality of your password and email address. You agree to (a) immediately notify us of any unauthorized use of your password or Account, or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not. You represent that you are the person registering for the Service or that the person registering you for the Service is an authorized representative of yours with the authority to agree to the Terms on your behalf.
As part of the registration process, you will be required to provide a payment method to be used to pay for any advertising services that you order through the Site. At the time of registration, we may verify the validity of the payment method using industry standard procedures for such verification, however we will not actually charge your payment method until you place an order.
3. Reservation of Rights
You acknowledge that the Service and the underlying software and all intellectual property rights therein, including copyrights, patent rights, trade secret rights and trademark rights, are owned by us. All rights not expressly granted herein are reserved by us. You expressly agree that any breach of the license grant by you is a material breach of the Terms. Except as expressly and specifically set forth in the Terms, nothing herein shall be construed as granting to you any property right, by license, implication, estoppel or otherwise, to any of our intellectual property rights.
Chalk Digital and its associated logos are either registered trademarks or trademarks of ours. All other company names, logos and other identifying marks that may be listed as part of our Service may be trademarks of their respective owners. WE DO NOT CLAIM ANY OWNERSHIP IN ANY THIRD PARTY’S TRADEMARKS NOR DO WE CLAIM ANY SPONSORSHIP, ASSOCIATION WITH OR ENDORSEMENT BY SUCH THIRD PARTIES.
If you provide any feedback to us about the Service (“Feedback”), you acknowledge our need to be able to freely use such Feedback and to own any improvements to the Service (e.g., improvements, fixes, errors, bugs, etc.) made by using or incorporating such Feedback. Accordingly, you hereby assign to us any rights you may have, including all intellectual property rights, in the Feedback and we may exercise our ownership rights to such Feedback and intellectual property rights without compensation, attribution or accounting. Without additional consideration, you agree to perform all acts reasonably necessary to perfect our rights in such intellectual property.
We agree to use the same care to protect your confidential information that we use to protect our own confidential information. We will not disclose or use any of your confidential information for purposes not contemplated by the Terms. All content or materials that you provide relating to any advertising services or activities is deemed to be non-confidential.
6. Payment of Fees & Appropriate Use of Site
By placing orders for advertising services or related activities through the Service, you expressly agree to pay the fees posted on the order at the time you submit such order, plus any applicable tax. Please note that fees are subject to change without notice. You represent and warrant that you have the right to incur charges on the payment method you provide to pay for these charges. You hereby authorize us to charge your payment method immediately upon your placing an order.
The Site is our property and all interactions on this Site must be lawful and must comply with the Terms. We have the sole discretion to determine what constitutes an appropriate use of the Site, and we reserve the right to terminate or restrict your use of the Service without notice.
7. Your Information & Conduct
You shall be responsible for the accuracy, quality and legality of any information that you supply to us and for the means by which you acquired such information. You represent and warrant that (i) your information does not and will not violate third-party rights of any kind, including, without limitation, any intellectual property rights or rights of publicity and privacy, (ii) you will use the Service in compliance with all applicable federal, state and local laws, regulations and rules. You agree not to engage in any of the following prohibited actions: (i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ii) interfering with the proper working of the Service; (iii) bypassing the measures that we may use to prevent or restrict access to the Service; or (iv) transmitting any viruses, worms, defects, Trojan horses or other items of a destructive nature.
8. Content You Provide
You are solely responsible for creating, selecting, preparing, reviewing, proofreading, and providing all content and materials for your advertising services and related activities.
You hereby grant to us a royalty-free, worldwide, perpetual, nonexclusive, and transferable license, with right to sublicense, to use, copy, modify, publish, distribute, and display any and all content or materials that you submit to the Site or otherwise provide in connection with any advertising services or related activities.
You may not use the Service in any way to advertise, publish, or otherwise distribute material that: is defamatory, obscene, pornographic, criminal or may be reasonably calculated to induce criminal activity, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, invasive of privacy or publicity rights, or deceptive; infringes another person’s intellectual property rights; implies an endorsement or affiliation that you do not have; or is otherwise objectionable.
We reserve the right to decline to accept any content, materials, or any order for our services. If we decline to accept an order you have placed, we will refund any fees you have paid for that order.
10. Copyright Infringement
If you believe that any content or materials available on the site violate your copyright, please send email to firstname.lastname@example.org for instructions on sending us a notice of copyright infringement. It is our policy to terminate the user accounts of repeat infringers.
11. Anonymous Data Collection
We shall have the right to utilize data capture, syndication, analysis tools, and other similar tools to extract, compile, synthesize, and analyze any non-personally identifiable data or information resulting from your use of the Service including from any confidential information provided by you (“Anonymous Data”). To the extent that any Anonymous Data is collected by us, such data shall be solely owned by us and may be used by us for any lawful business purpose without a duty of accounting to you therefor; provided that the Anonymous Data is used only in an aggregated form, without specifically identifying the source of the Anonymous Data.
12. Warranty Disclaimer
THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS, AND YOU AGREE TO USE IT AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. WE MAKE NO GUARANTEES REGARDING THE QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, RELIABILITY, OR USEFULNESS OF SERVICE OR RESULTS OBTAINED THEREFROM. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, WE EXPRESSLY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OF ANY KIND WHATSOEVER, WHETHER STATUTORY, EXPRESS, IMPLIED OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
ALL MARKETING DECISIONS WILL BE MADE BY YOU. YOU ACKNOWLEDGE AND AGREE THAT WE MAY PROVIDE RECOMMENDATIONS AS TO MARKETING STRATEGIES AND ACTIONS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL DECISIONS OF WHETHER OR NOT TO ACCEPT A RECOMMENDATION WILL BE MADE BY YOU. WE SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY MARKETING DECISIONS MADE BY YOU REGARDLESS OF WHETHER OR NOT YOUR DECISION WAS BASED ON RECOMMENDATIONS, REPORTS OR OTHER INFORMATION PROVIDED TO YOU BY US.
AS PART OF THE SERVICE, WE COLLECT AND COMPILE INFORMATION FROM MULTIPLE THIRD-PARTY RESOURCES WITH VARYING DATA QUALITY. WE DO NOT ATTEMPT TO INDEPENDENTLY VERIFY THE COMPLETENESS, ACCURACY, AUTHENTICITY OR APPROPRIATENESS OF THE INFORMATION THAT WE COLLECT AND SUPPLY. ACCORDINGLY, THE INFORMATION IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. ANY USE OR RELIANCE UPON THE INFORMATION BY YOU SHALL BE AT YOUR OWN RISK.
You hereby acknowledge the above disclaimers, and unconditionally and irrevocably release and forever discharge us, of and from all, and all manner of, actions, causes of action, suits, proceedings, debts, dues, contracts, judgments, damages, claims, and demands whatsoever in law or equity, which you ever had, now have, or shall, or may have for or by reason of any matter, cause, or thing whatsoever arising out of the use of the Service. If you are a California resident, you acknowledge that you are aware of, and understand, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” You expressly, knowingly and intentionally waive any and all rights, benefits and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
13. Limitation of Liability
IN NO EVENT SHALL WE BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, LOSS OF INFORMATION, LOSS OF DATA, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE AND/OR SOFTWARE OR ANY OTHER SUBJECT MATTER OF THE TERMS. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES FOR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FEES CHARGED TO YOU AND PAID BY YOU TO US DURING THE THIRTY DAYS IMMEDIATELY PRIOR TO THE EVENTS OR CIRCUMSTANCES WHICH FIRST GAVE RISE TO ANY SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify us, defend us and hold us harmless from and against any claims, actions, losses, damages or other liabilities, including, but not limited to, attorney fees, that arise out of or result from any claim relating to, or arising out of, or in connection with, (i) your breach of any representation, warranty, covenant, obligation or agreement as set forth in the Terms; or (ii) any defamatory or illegal, or allegedly defamatory or illegal, material transmitted through the Service by you, any authorized party or any other person or entity that gains access to the Service through you.
15. Basis of the Bargain
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON INDEMNIFICATION, WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
16. Dispute Resolution
General. If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and we agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the paragraphs below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to customer support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed below, you and we agree to seek resolution of the Claim only through arbitration of that Claim in accordance with the terms of this Section 16, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
YOU AND WE AGREE THAT ANY CLAIM FILED BY YOU OR BY US IN SMALL CLAIMS COURT OR BY US RELATED TO PROTECTION OF OUR OR ANY OF OUR LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 16 AND YOU CONSENT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS IN SAN DIEGO COUNTY FOR ANY CLAIM THAT WE MAY FILE IN THOSE COURTS RELATED TO OUR OR OUR LICENSOR’S INTELLECTUAL PROPERTY.
RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 16, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ENTER INTO THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO CHALK DIGITAL TERMS ADMINISTRATOR, 16870 WEST BERNARDO DR. SUITE 360, SAN DIEGO, CA 92127ADDRESS, (3) YOUR USER OR ACCOUNT NAME AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND WE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or we elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 16 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
Arbitration Procedures. Because the service provided to you by us concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879 FREE. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with us as described above and the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to us or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or we may initiate arbitration in either San Diego County or the county in which you reside or, if you are not an individual, you are located. In the event that you initiate arbitration in the county of your residence or your business location, we may transfer the arbitration to San Diego County in the event that we agree to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
Severability. If any clause within this Section 16 (other than the Class Action Waiver section) is found to be illegal or unenforceable, that section will be severed from this Section 16, and the remainder of this Section 16 will be given full force and effect. If the Class Action Waiver section is found to be illegal or unenforceable, this entire Section 16, except for this sentence, will be unenforceable, and the dispute will be decided by a court and you and we each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
You may not assign or delegate your rights under this Agreement, directly or indirectly, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign your rights or delegate your duties in contravention of the preceding sentence shall be void from the beginning. Subject to the foregoing, the Terms shall bind and inure to the benefit of the successors and permitted assigns of the parties. This section along with Sections 11, 12, 13, 14, 15 and 16 shall survive any expiration or termination of the Terms. Furthermore, all representations, warrants, releases, acknowledgements and assignments made by you in the Terms, including but not limited to those in Sections 3, 4, 5 and 7 shall survive any expiration or termination of the Terms. The Terms will be governed by the laws of the State of California regardless of its principles regarding conflicts of laws. This is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of the Terms shall be valid unless in writing signed by each party. If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Terms shall remain in full force and effect. You acknowledge that the Service has unusual and extraordinary value, and that the prospective breach of any provision of the Terms by you may cause us great and irreparable harm, for which remedies available at law may be inadequate. We shall be entitled to seek equitable relief to protect our intellectual property rights that are the subject matter of the Terms without prejudice as to other relief available at law.
18. Monthly Product Subscription
Your monthly subscription for Chalk Digital products will start when Chalk Digital confirms your payment and will continue for a period of thirty days. When you purchase a monthly subscription, auto-renew is automatically selected for your Chalk Digital Account. At the end of the monthly subscription period, you will automatically be signed up and billed for an additional subscription term of 30 days. If you do not wish your subscription to auto-renew, you may contact Chalk Digital prior to the end of your current subscription term.
19. Annual Product Subscription
Your annual subscription for Chalk Digital will start when Chalk Digital confirms your payment and will continue for a period of one year. Annual subscriptions purchased on the Chalk Digital Platforms are billed monthly in twelve equal payments. Annual subscriptions purchased from Chalk Digital are paid in full in advance. When you purchase an annual subscription, auto-renew is automatically selected for you Chalk Digital account. At the end of the annual subscription period, Chalk Digital will sign you up and bill you for an additional subscription term of one year. If you do not wish your subscription to auto-renew, you may contact Chalk Digital prior to the end of your current subscription term.