These Epom White Label DSP Terms (the « T&Cs ») define the conditions under which Epom Ltd (“Epom”) , a limited liability company, with its registered office located at Nancy Whiticker House, 7 Old Street, Roseau , Commonwealth of Dominica, which provides hosted Demand Side Platform solutions to Advertiser (the “Client”) and has developed a proprietary DSP application ( the "Software").
1. ACCEPTANCE OF THE AGREEMENT
Epom wishes to grant to the Client the license of the right to use and operate
a duplicate of the Software and any associated product, feature, software, application, data feed and service
(hereinafter collectively referred to as the "White Label Solution") and the Client wishes to obtain such licence from Epom.
An individual or a legal entity on whose behalf the Client agrees to the terms and conditions of the present White Label Solution License Agreement and to provisions of policies incorporated herein by reference (hereinafter collectively referred to as the "Agreement"). If the Client is accepting the terms and conditions of the present Agreement on behalf of any entity, the Client represents and warrants that it is authorized to accept the Agreement on such entity's behalf, and that such entity agrees to indemnify the Client and Epom for violations of the Agreement.
The Agreement is entered into by and between the Client and Epom. If the Client is operating the White Label Solution on behalf of any entity, the Client represents and warrant that the Client is authorized to accept the Agreement on such entity's behalf, and that such entity agrees to indemnify the Client and Epom for violations of the Agreement.
The Client's operation of the White Label Solution shall be subject to the terms and conditions contained in the Agreement. By operating the White Label Solution, the Client accepts and agrees to be bound by the terms and conditions of the Agreement. If the Client does not agree to be bound by any of the provisions contained in the Agreement, the Client shall not access, use, or operate the White Label Solution
The Client may not use or operate the White Label Solution and may not enter into the Agreement if (a) the Client is not of legal age to form a binding contract with Epom, or (b) the Client is a person who is either barred or otherwise legally prohibited from using or operating the White Label Solution under the laws of the country in which the Client is a resident or from which the Client uses or operates the White Label Solution.
The present Agreement does not alter in any way the terms or conditions of any other written agreement the Client may have with Epom.
2. GRANTED LICENSE
Licence. Subject to the terms and conditions of the Agreement, Epom grants the Client a worldwide, non–transferable, non–assignable, non–sublicensable and non–exclusive licence of the right to operate the White Label Solution under Client's own brand name.
General Restrictions. The rights granted to the Client in the Agreement are subject to the following restrictions: (a) the Client shall not sublicense, sell, rent, lease, reproduce, copy, transfer, or assign any part of the White Label Solution; (b) the Client shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, reverse engineer or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any part of the White Label Solution; (c) the Client shall not use the White Label Solution in order to build a similar or competitive service; (d) except as expressly stated herein, no part of the White Label Solution may be copied, downloaded, and republished in any form or by any means; (e) the Client shall not use, or encourage, promote, facilitate or instruct other users to use, the White Label Solution for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive (including content which offends religious sensibilities).
The Client agrees not to use the White Label Solution in order to: (a) upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or a mobile device or data; (b) collect information or data regarding other users, including e–mail addresses, without their consent (e.g., using harvesting bots, robots, spiders, or scrapers); or (c) disable, overly burden, impair, or otherwise interfere with servers or networks connected to the White Label Solution (e.g., a denial of service attack).
Modification. Epom reserves the right, at any time, to modify, suspend, or discontinue the operation of the White Label Solution or any part thereof, with or without notice. The Client agrees that we will not be liable to the Client or to any third party for any modification, suspension, or discontinuance of operation of the White Label Solution or any part thereof.
Ownership. Epom and our licensors (where applicable) own all right, title and interest, including all related intellectual property rights, in and to the White Label Solution and content therein. As stated above, the right to use and operate the White Label Solution is licensed to the Client; this means that the White Label Solution is under no circumstances sold/transferred to the Client. Indeed, the Agreement does not convey to the Client any rights of ownership in or related to the White Label Solution. Epom name, logo, and other names associated with the White Label Solution belong to Epom (or to Epom's licensors, where applicable), and no licence of the right to use them by implication, estoppel or otherwise is granted to the Client hereunder. Epom (and Epom's licensors, where applicable) reserve all rights not granted in the Agreement.
3. SERVICES FEES, CANCELLATION OTHER PAYMENTS TERMS
By using the White Label Solution, the Clients agrees to pay all associated fees with the Client's licensing of the right to operate the White Label Solution. Epom reserves the right to adjust its fee structure at any time. The Client may cancel this service at any time and for any reason, however, all fees are non–refundable. Therefore, a cancellation will only cancel future billings. Epom reserves the right to revoke access to the White Label Solution if the applicable fees are not paid when due.
4. LICENSEE ACCOUNT
In order to be able to operate the White Label Solution the Client will need to create a licensee account ("Licensee Account") and provide certain information as requested by Epom in the online registration form. The Client represents and warrants that (a) all required registration information submitted is truthful and accurate, (b) the Client will maintain the accuracy of such information, and (c) the Client's use
of the White Label Solution does not violate any applicable laws.
The Client shall be responsible for (a) maintaining and ensuring the confidentiality and security of Licensee Account's login information, and (b) all activities that are conducted under the Client's Licensee Account. The Client agrees not to disclose the password to any third party and the Client shall be solely responsible for any use of or action taken through the use of such password on the White Label Solution. Epom cannot and will not be liable for any loss or damage arising from the Client's failure to comply with this requirement. By using Licensee Account, the Client acknowledges and agrees that Epom's account security procedures are commercially reasonable. Epom reserves the right to revoke the Client's right to access Licensee Account at any time if any misuse of the White Label Solution occurs, or if unauthorized activity is detected in the system.
5. THE CLIENT'S OBLIGATIONS
As a White Label Solution licensee, the Client hereby agrees that the Client shall:
1. be solely responsible for all the Client's trademarks, logos, design, media, text, graphics, animations, audio, video, photos or any other information posted and published on the White Label Solution and for activity that occurs on the White Label Solution;
2. be solely responsible for all costs and expenses incurred in connection with the operation of the White Label Solution;
3. be solely responsible for all tax returns, contributions and payments required to be filed with or made to any federal, state, or local tax authority, in the Client's country of residence, with respect to the Client's operation of the White Label Solution.
4. not use the White Label Solution for any illegal or unauthorized purposes. The Client must not, in the operation of the White Label Solution, violate any laws applicable to the Client's or Epom's jurisdictions (including but not limited to copyright laws);
5. use good, fair and honest business practices in connection with the operation of the White Label Solution;
6. not take any action that imposes or may impose (as determined by Epom in its sole discretion) an unreasonable or disproportionately large load on Epom's infrastructure;
7. TERM AND TERMINATION
The Client hereby acknowledges and agrees that the Agreement shall come into force on the date of the first use of the White Label Solution and accepts provisions contained in the Agreement and will remain in force and effect until terminated in accordance with the Agreement.
Either Epom or the Client may terminate this agreement for convenience with at least 30 (thirty) days prior written notice (to include e–mail).
Epom may (a) suspend the Client's rights to use and operate the White Label Solution, and/or (b) terminate the Agreement, at any time
at Epom's sole discretion with or without notice to the Client, if Epom believes the Client have violated any provision of the Agreement.
Upon termination of the Agreement, the Client's right to use the White Label Solution will automatically and immediately terminate. The Client understands that any termination of the Agreement may involve deletion of the Client's content from the White Label Solution and Epom's databases.
Any termination of this Agreement (howsoever occasioned) shall not affect any accrued legal rights, obligations and liabilities of either the Client or Epom, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after any such termination.
The Client agrees to defend, indemnify and hold harmless Epom, its directors, employees, agents, independent contractors, service providers and consultants, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any part of content the Client provides to Epom or posts to, stores or otherwise publishes on the White Label Solution or the Client's use of or inability to use the White Label Solution, including without limitation any actual or threatened suit, demand or claim made against Epom and/or its directors, employees, agents, independent contractors, service providers and consultants, arising out of or relating to (a) the Client's partners' and customers' content or conduct, or (b) the Client's violation of the Agreement, or (c) the Client's violation of the rights of any third party.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY EPOM, THE WHITE LABEL SOLUTION IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT EPOM USES THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO RUN THE WHITE LABEL SOLUTION. EPOM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON–INFRINGEMENT AS TO THE WHITE LABEL SOLUTION, EPOM DOES NOT REPRESENT OR WARRANT THAT CONTENT FOUND ON THE WHITE LABEL SOLUTION IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR–FREE OR THAT THE WHITE LABEL SOLUTION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EPOM SHALL NOT BE RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS FOUND ON THE WHITE LABEL SOLUTION.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL EPOM, ITS AFFILIATES, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WHITE LABEL SOLUTION OR OF CONTENT OWNED BY ANY WHITE LABEL SOLUTION USER, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY THE CLIENT ON ANY INFORMATION OBTAINED FROM EPOM OR THE WHITE LABEL SOLUTION, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE WHITE LABEL SOLUTION. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EPOM, ITS DIRECTORS, EMPLOYEES OR AGENTS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE WHITE LABEL SOLUTION, EXCEED ANY COMPENSATION THE CLIENT PAYS, IF ANY, TO EPOM TO OPERATE THE WHITE LABEL SOLUTION UNDER THE CLIENT'S OWN BRAND NAME.
11. GENERAL PROVISIONS
Entire Agreement. The Agreement, as well as any policies incorporated herein by reference, constitute the entire agreement between
the Client and Epom with respect to the subject matters hereof and supersedes all prior discussions and agreements (whether in writing or oral) between the Client and Epom with respect to such subject matters (including any prior license agreements or terms of service).
Changes to This Agreement. Epom reserves the right to change this Agreement as Epom may deem necessary from time to time or as may be required by law.
Contractual Relationship. This Agreement does not create a partnership, agency, or employer–employee, or similar relationship between Epom and the Client. The Client does not have authority to enter into written or oral – whether implied or express – contracts on behalf of Epom. The Client acknowledges that Epom does not, in any way, supervise, direct, or control the Client's actions or operation of the White Label Solution.
Waiver. Epom's failure to exercise or enforce any right or provision of the Agreement shall not operate as a waiver of such right or provision.
Assignment. Epom may assign, transfer or otherwise dispose of the Agreement in whole or in part or any of our rights hereunder in connection with a merger, acquisition, reorganization or sale of all or substantially all of Epom's assets, or other operation of law, without the Client's consent. The terms and conditions of the Agreement shall be binding upon assignees.
Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, (i) the other provisions of the Agreement will be unimpaired, and (ii) the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Notices: Consent to Electronic Notice. The Client consents to the use of (a) electronic means to execute this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or the Client's operation of the White Label Solution. Notices hereunder shall be invalid unless made in writing and given (a) by Epom via email (to the email address that the Client provides), or (b) by the Client via email to email addresses as Epom may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
Applicable Law and Venue. The Agreement and the Client's use of the White Label Solution shall be governed by and construed in accordance with the laws of Commonwealth of Dominica without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction.
Should a dispute arise between the Client and Epom, Epom's goal is to provide the Client with a neutral, amicable, quick and cost–effective means of resolving any dispute. Accordingly, the Client and Epom hereby agree that the Client and Epom shall first attempt to resolve any claim, dispute or controversy at law or equity that arises out of these Agreement in an amicable way prior to submitting any such claim, dispute or controversy to the jurisdiction of courts.