BY ACCEPTING THESE TERMS OF USE, EITHER BY CLICKING A BOX ONLINE INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER THAT REFERENCES THEM, OR BY USING OUR SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS. IF YOU ARE ACCEPTING THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF USE, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS OF USE AND YOU MAY NOT USE THE SERVICES.
- Definitions. Terms and expressions not otherwise defined in the body of these Terms of Use will have the following meanings:
- “Ad” or “Advertisement” means a commercial notice, announcement or message made in a public medium to customers or prospective customers to promote a person, entity, brand, product, service, or event.
- “Ad Technologies” means, collectively, digital advertising technologies that include advertising tags (such as pixels, clear GIFs and similar methods), cookies, device identifiers or other identifiers and similar technologies.
- “Ad Services” means those services such as digital marketing and traditional agency services, as may be provided by fullthrottle.ai and/or its Affiliates pursuant to an Order.
- “Additional Terms and Conditions” means those additional terms and conditions specified by fullthrottle.ai from time to time for certain Services and attached to an Order.
- “Affiliate” of a party means an entity that, directly or indirectly through one or more entities, controls, is controlled by or is under common control with that party, where “control” means the possession, direct or indirect, of the power to direct the management and policies of such party, whether through the ownership of at least fifty percent (50%) of the voting interest of such party, through contractual provisions, or otherwise, and includes that entity’s officers, directors, agents, employees, successors and assigns.
- “Agreement” means, collectively, these Terms of Use, our Privacy Policy, and any Orders, including all schedules and attachments thereto and all amendments to any of the foregoing.
- “Customer”, “you” and “your” means the organization identified in the applicable Order to receive the subscription to the Service.
- “Customer Data” means, other than Non-Proprietary Data, all data collected by fullthrottle.ai hereunder on behalf of or received from Customer, or an agency representing Customer, including any data, information, or materials that Customer, its Affiliates, or any third party vendors or partners on Customer’s behalf may disclose or submit to fullthrottle.ai and any and all Customer Reports, provided Customer Data does not include Non-Proprietary Data or other data or information that fullthrottle.ai receives outside of its performance of the Services for Customer, even if such information is identical to a portion of data comprising Customer Data. References to Customer Data include Customer Personal Data unless Customer Personal Data is specifically excluded.
- “Customer Material(s)” means any Customer Advertisement, creative, content, data, information or material provided by or created for Customer as a deliverable as part of the Services, and includes, without limitation, any creative works, content, data, information, or materials.
- “Customer Report” means any report or summary prepared for Customer in connection with the Services containing information—including IP addresses and pseudonymous data with cookie ID, user ID, Device ID, mobile ID, or other persistent identifier(s) —about user activity or engagement with Advertisements or Site Content.
- “Fees” means the fees or rates for the use of the Services as set forth in each Order.
- “fullthrottle.ai”, “we” and “us” means FullThrottle Technologies, LLC.
- “Intellectual Property Rights” means all rights including future rights in inventions, patents, designs, copyrights, trademarks, service marks, databases and topography rights (whether or not any of those is registered and including applications for registration of the foregoing, renewals, extensions, continuations, divisions and reissues) together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any others which may subsist anywhere in the world.
- “Non-Proprietary Data” means any non-proprietary and anonymous or pseudonymous data that may be generated or obtained by fullthrottle.ai in connection with the Services, including data included in a HTTP header or HTTP response, such as user agent strings and time stamps; IP addresses; URLs not provided by or on behalf of Customer; and persistent and non-persistent identifiers, such as session IDs, cookie IDs, cache-based IDs, mobile advertising identifiers and device IDs.
- “Order” means an order for Services that is signed by Customer or submitted to fullthrottle.ai by means of a fullthrottle.ai online click-thru or self-service online tool and that is accepted by fullthrottle.ai, which may include, without limitation, an order, statement of work, schedule, attachment, order details provided in a user interface, or insertion order, as amended from time to time.
- “Privacy Rules” means, collectively: (i) the requirements of any applicable privacy and data protection laws, treaties, inter-governmental agreements, and regulations to which a party is subject in the conduct of its business; and (ii) the following digital advertising industry rules to the extent applicable to the conduct of a party’s business in the territories where such rules apply: (a) all United States Federal Trade Commission (“FTC”) rules and guidelines regarding the collection, use and/or disclosure of information from or about a unique user of a website, application and/or mobile website and/or the device associated with such user; (b) enacted legislation and regulations under the California Consumer Privacy Act, California Civil Code Section 1798.100 et seq. and any other applicable law of a state within the United States; (c) the advertising industry self-regulatory codes and principles promulgated by the Digital Advertising Alliance (“DAA”), as each such rules, guidelines, codes or set of principles may be amended from time to time; (iii) any other relevant FTC, DAA, or EDAA code or principles relating to the collection and use of data obtained from individual persons for advertising purposes; and (iv) any amendments, modifications, extensions, supplements or replacements of or to any of the foregoing.
- “Services” means, collectively, those services provided to Customer as specified in the applicable Order, which may include, without limitation: (i) subscription based access to the System; (ii) technology services through the System such as audience curation, household identification, ad serving and measurement, delivery, and analysis of digital advertising; (iii) various Ad Services such as professional, creative, and related marketing agency services for Customer through fullthrottle.ai and its Affiliates ; and (iv) other reporting, products, and/or services that fullthrottle.ai may make available to Customer from time to time, including third party products and services.
- “Site(s) Content” means all materials, data, images, texts, sounds, information or other content contained in or around and/or linked to any Site.
- “System” means the proprietary SaaS-based fullthrottle.ai technology platform accessible via the Internet for the provision and use of the Services, and all related applications, software (including source and object code), updates, enhancements, documentation or other materials (excluding Customer Materials) in or related to the Services that fullthrottle.ai may make available to Customer.
- “Term” has the meaning given in the applicable Order. If no term is specified in the Order, “Term” shall have the meaning as defined in Section 12 (Term and Termination).
- “Third Party User” means any third party contractor, agency, or other Customer-authorized user, to whom Customer grants access to the Services through Customer’s Account for Customer’s internal business purposes (as defined in Section 3.1).
- Ordering and Use of Services
- Customer may subscribe to Services by executing an Order. fullthrottle.ai may reject any Order in its sole discretion. Any signature method approved by fullthrottle.ai shall be binding upon Customer, including electronic signatures or other indications of assent to the terms of this Agreement, such as assent given through the use of an online ordering process. No supplemental or different terms presented by Customer, such as in a purchase or insertion order, or change made by Customer in writing or otherwise to an Order, or these Terms of Use, shall be binding upon fullthrottle.ai unless set forth in a written amendment executed by both parties.
- Subject to payment by Customer to fullthrottle.ai of any applicable Fees, fullthrottle.ai will make the Services available to Customer (and its Third Party Users, as applicable) in accordance with the terms of this Agreement. Notwithstanding the foregoing, Customer acknowledges and agrees that certain Services, including, without limitation, professional, creative, or third party services, may be subject to Additional Terms and Conditions which will be provided or referenced in the applicable Order.
- Access to System and Account
- Customer may have access to certain Services through the System or an application programming interface (“API”) owned, maintained, and/or controlled by fullthrottle.ai. If applicable, fullthrottle.ai will provide Customer with one or more logins and passwords for access to Customer’s account and corresponding administrative controls (“Customer’s Account”) by Third Party Users (“Customer’s Representatives”). In order to use the System, Customer represents and warrants that Customer Representatives will provide fullthrottle.ai with accurate, truthful and complete registration information and abide by the terms of this Agreement when using the System and Services. The Services may not be used for competitive or benchmarking purposes.
- Customer will ensure that each of Customer’s Representatives that is provided access keeps its registration information accurate and up-to-date and does not share its password or registered user name with any third party, and any failure by any Customer Representative to do so will constitute a breach of this Agreement by Customer, which may result in immediate termination of Customer’s Account. Customer will immediately notify fullthrottle.ai in writing of any change in authorization, any unauthorized use of any Customer’s Account or any other account-related security breach of which it becomes aware. Upon termination of this Agreement for any reason, fullthrottle.ai will have the right to disable and delete Customer’s access to Customer’s Account and delete all Customer Data thirty (30) days after termination or expiration of this Agreement.
- API Use: If Customer authorizes fullthrottle.ai to set up API access under Customer’s Account: (a) Customer’s use of the API is deemed to be a use of the System and is subject to the terms of this Agreement and any Additional Terms and Conditions fullthrottle.ai may require regarding API use; (b) fullthrottle.ai will provide access to the API in accordance with Customer’s written instructions and any additional usage terms set forth in the Order; (c) Customer acknowledges and agrees that fullthrottle.ai’s only obligations with respect to Customer and/or any Third Party User provided access to fullthrottle.ai’s API (“3rd Party API User”) are those specifically undertaken by fullthrottle.ai in the Order and fullthrottle.ai otherwise has no responsibility or liability for Customer’s or any 3rd Party API User’s performance or obligations under any separate agreement that may exist among Customer, any of Customer’s clients and any 3rd Party API Users; (d) Customer is solely responsible for obtaining any 3rd Party API User’s written agreement to any Additional Terms and Conditions required for access to the API and returning a copy thereof to fullthrottle.ai; and (e) fullthrottle.ai may suspend providing API access without liability to Customer or any 3rd Party API User, or any of their respective Affiliates or clients, if fullthrottle.ai believes, in its sole discretion, that the receipt or processing of any Customer Data via the API violates any Privacy Rules or otherwise may result in liability for fullthrottle.ai, its Affiliates, or any of their respective customers.
- Limited Rights; Ownership
- fullthrottle.ai hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), and limited right for Customer to access and use the Services and System in accordance with this Agreement during the Term and only for its internal business purposes related to Customer advertising and marketing. Customer may not, directly or indirectly or by itself or through any other person or entity, rent, lease, sell, transfer (by sublicense, assignment, operation of law, change in control or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the System or Services, or any output derived from such. Moreover, Customer will not (and will ensure that Customer’s Representatives do not) reverse engineer, decompile, or otherwise attempt to discover the source code for the System or any of the Services. The Services may only be used for their intended purpose of supporting Customer’s legitimate advertising initiatives.
- fullthrottle.ai, together with its licensors, has sole and exclusive ownership of all right, title and interest in and to the System and all applicable Services and all Intellectual Property Rights in the System and applicable Services, any enhancements thereto, any documentation or other materials regarding the use thereof and related thereto, any machine learning and the results and outputs of such machine learning that occur prior to, during, or after Customer’s use of the Services, and any fullthrottle.ai proprietary data provided to Customer by fullthrottle.ai in whatever form or media (collectively, “fullthrottle.ai Intellectual Property”). Neither this Agreement, nor anything contained herein, will be construed as a sale of the System or any of the Services or any Intellectual Property Right or any other fullthrottle.ai Intellectual Property or any proprietary right or title therein or thereto. All rights not expressly assigned or licensed in this Agreement are reserved by fullthrottle.ai in full.
- Any deliverables created for or on behalf of Customer pursuant to an Order shall be marked as such. If any deliverable to Customer produced by fullthrottle.ai’s Services includes fullthrottle.ai Intellectual Property, then fullthrottle.ai will remain the sole and exclusive owner of such included fullthrottle.ai Intellectual Property, and fullthrottle.ai grants Customer only a non-exclusive, revocable, worldwide, royalty-free license to use such fullthrottle.ai Intellectual Property solely as incorporated into or embedded in such deliverables and not separately therefrom; provided further that, any use of a deliverable containing any trademark of fullthrottle.ai or its Affiliates will be subject to fullthrottle.ai’s Trademark Usage Guidelines (provided separately). Subject to the preceding sentence, Customer will own all right, title and interest in and to deliverables, including the Intellectual Property Rights therein.
- As between fullthrottle.ai and Customer, Customer has and will have the sole and exclusive ownership of all right, title and interest in and to the Customer Materials, Customer Data, and the Site Content where applicable, and all Intellectual Property Rights in the same, except for any fullthrottle.ai Intellectual Property embedded therein.
- Customer grants fullthrottle.ai a non-exclusive license during the Term to use, copy, modify, process and distribute Customer Materials and Customer Data solely for the purpose of providing the Services in accordance with this Agreement and subject to its terms.
- Customer agrees that fullthrottle.ai may use and disclose certain data, including Customer Data and Non-Proprietary Data, derived from Customer’s use of the System and Services (assuming no user opt-out of such use has been communicated to fullthrottle.ai, including as provided in Section 6) to create aggregated data and statistics about the Services and its features, which fullthrottle.ai may provide to others, including fullthrottle.ai’s customers, potential customers and the general public, provided that such aggregated data and statistics do not contain any Customer Personal Data (as defined in Section 6.2) or identify any living individual, Customer, Customer’s clients, or any of their respective products or brands.
- Customer grants fullthrottle.ai a non-exclusive license during the Term to use its name and trademarks in marketing materials, in its customer showcase area of its website, and customer lists. Customer may opt out of the foregoing at any time by notifying fullthrottle.ai in writing.
- If Customer provides any suggestions, ideas, enhancement requests, recommendations or other feedback (collectively, “Feedback”) regarding the Services, Customer thereby grants fullthrottle.ai a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up, sub-licensable right to make, use, copy, modify, create derivative works based upon, perform, display, import, sell and distribute such Feedback (and derivative works thereof).
- Confidential Information. The exchange of any information provided hereunder by either party to the other party which is clearly marked as “confidential” or is otherwise of a nature that should reasonably be considered to be confidential, including any Fees set forth in the Orders, roadmaps, source code (“Confidential Information”) will be governed by the terms of the fullthrottle.ai Mutual Non-Disclosure Agreement, or other confidentiality agreement which may be executed between fullthrottle.ai and Customer.
- Data Protection and Privacy
- fullthrottle.ai and Customer (including its Customer Representatives) each represent and warrant that it will at all times comply in full with all applicable laws, including all requirements of any applicable Privacy Rules, and will refrain from engaging in any behavior that renders or is likely to render the other party in breach of any applicable Privacy Rules.
- To the extent that fullthrottle.ai processes personal data about any natural person (“Personal Data”, which may be referred to as “personally identifiable information” or “Personal Information” or similar term in the Privacy Rules of some countries) supplied or collected by or on behalf of Customer (“Customer Personal Data”) in the course of providing the Services, it will do so as a data processor or service provider acting on behalf of Customer (as data controller) and in accordance with the requirements of this Agreement. The terms “data processor,” “service provider,” “data controller,” “process” and their derivatives will have the meanings ascribed to them under the Privacy Rules enforceable in the geographic territories where such processing occurs, or if not defined in any territory, they will have their plain language meanings in that territory.
- fullthrottle.ai will process any Customer Personal Data in accordance with Customer’s lawful instructions under applicable Privacy Rules and will not: (a) assume any responsibility for determining the purposes for which or the manner in which Customer Personal Data is processed; or (b) other than certain Non-Proprietary Data that may be Personal Data under the Privacy Rules, process any Customer Personal Data for its own purposes.
- Customer will process and disclose Customer Personal Data in accordance with Customer’s published privacy policy and applicable Privacy Rules, and if fullthrottle.ai is instructed by Customer to collect any Customer Personal Data through any Services, Customer will use such Customer Personal Data solely for the purposes identified within the Customer Materials and Customer’s privacy policy.
- Where Customer is an owner or publisher of one or more websites, applications or other digital properties in which Advertisements are displayed and/or Ad Technologies are deployed (each, a “Site”) it will comply with the Privacy Rules and commercially reasonable industry standards and practices, including: (a) maintaining a privacy policy conspicuously on each Site that complies with the Privacy Rules and, at a minimum, includes disclosures on Customer’s interest-based advertising activities, the types of data collected from users by the Sites, the Site’s use of any such data and any disclosures or transfer of such data to third parties, and the types of Ad Technologies used by the Site to collect such data; (b) providing a brief explanation within Customer’s and each Site’s privacy policy explaining that it works with third party ad providers and, if applicable, allows such third party ad providers to engage in interest-based advertising activities, serve Customer Materials and use Ad Technologies on the Site to collect user data for use in connection with the delivery of advertising and content; and (c) including in Customer’s and each Site’s privacy policy, where applicable, a conspicuous link to an industry opt-out page that allows users to opt-out of the interest-based advertising activities of third party ad providers.
- fullthrottle.ai will have in place and maintain throughout the Term appropriate technical and organizational measures to prevent accidental or unauthorized destruction, loss, alteration or disclosure of Customer Data. Customer acknowledges that fullthrottle.ai shall have the right to delete Customer Data in accordance with fullthrottle.ai’s data retention policies and to disclose, modify or delete Customer Personal Data in accordance with this Agreement or as required by Privacy Rules.
- Customer authorizes fullthrottle.ai to subcontract processing of Customer Data under this Agreement to one or more third parties provided that fullthrottle.ai: (a) complies with the Privacy Rules; (b) flows down its obligations to protect the Customer Data to any subcontractor it appoints; and (c) will remain responsible for any failure to comply with the Privacy Rules by any subcontractor it appoints to process Customer Data.
- fullthrottle.ai uses Ad Technologies to provide certain Services (more information can be found by clicking HERE). Customer will ensure that it obtains all appropriate and necessary consents, and provides all necessary information, to enable the use of such Ad Technologies in compliance with the Privacy Rules. In particular, Customer will ensure that individuals are informed of their ability to refuse or opt-out of fullthrottle.ai Ad Technologies at any time. Customer agrees that fullthrottle.ai has no responsibility or liability for Customer’s failure to disclose Ad Technologies to its website visitors.
Specifically, Customers must:- Publish, maintain, and at least annually, review, a privacy policy on your Site(s) which provides Site visitors with notice of your use of Ad Technologies.
- Use commercially reasonable efforts to ensure that a Site visitor is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the visitor’s device where such activity occurs in connection with the Site and where providing such information and obtaining such consent is required by law.
- not circumvent any privacy features (e.g., an opt-out) that are deployed as part of the Service. The Services require an explicit opt-in permission from the Site visitors through an installed consent management platform as well as an additional layer of opt-in from the visitor to share location with the browser layer. The Services are fully compatible with modern consent management platforms.
- fullthrottle.ai’s provision of the Services to Customer shall be in accordance with fullthrottle.ai’s privacy policy (“Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy can be found at fullthrottle.ai’s website and is available for review at https://www.fullthrottle.ai or any other location specified by fullthrottle.ai from time to time. Customer will maintain, implement and at all times comply with a publicly-available privacy policy that in all material respects meets or exceeds the substantive provisions of fullthrottle.ai’s Privacy Policy.
- Customer will not append any third party tags to fullthrottle.ai’s tags, nor will Customer allow any third party tracking or tagging (collectively “Third Party Tags”) through the System unless any provider requesting to implement Third Party Tags is in full compliance with this Section 6 and the Privacy Rules, including, without limitation, by presenting users with notice and choice to opt-out of data collection and processing in connection with such Third Party Tags. Customer will provide fullthrottle.ai and any client it represents, where applicable, with notice of any Third Party Tags Customer wishes to implement in the System. fullthrottle.ai reserves the right to validate any Third Party Tags or provider thereof for compliance with this Section 6 and the Privacy Rules, and for authenticity, and is under no obligation to allow the implementation of Third Party Tags. fullthrottle.ai may create lists of providers of Third Party Tags who are certified to append Third Party Tags in the System, and reserves the right to block any providers who are not validated for compliance; and without derogating from the above, Customer will be solely responsible for any Third Party Tags implemented through the System by Customer or any provider or other person authorized to act on Customer’s behalf, including any damage, cost or claim resulting from appending such Third Party Tags.
- Customer Responsibilities
- As between the parties, Customer is solely responsible for: (a) all aspects of any Customer Materials created, delivered, or managed through or processed or linked to the Services; (b) all campaign settings, as determined and inserted by or on behalf of Customer on the System; and (c) all aspects of campaign management including data entry, ads, pricing, budget, maximum number of impressions, flight parameters, pacing, campaign set up and trafficking, targeting constraints, monitoring ad status, advertiser requirements and objectives, and campaign performance. Customer is solely responsible for any conditions, representations or warranties it makes to its customers and prospective customers. Customer will conduct (and ensure that its Third Party Users conduct) all of its marketing, business, and other activities related to the Customer Materials and its use of the Services in compliance with local, state, federal and international laws, rules, treaties, inter-governmental agreements and governmental orders, regulations and regulatory codes of practice applicable to its business.
- Customer represents and warrants that it will not use the Services in connection with, or to promote campaigns, Advertisements or other Customer Materials or Site Content containing: (a) content that is an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material or discriminatory; (b) content that promotes any illegal or fraudulent activity, including, without limitation, the promotion of gambling where prohibited, illegal substances, software piracy or hacking, or invalid advertising traffic; (c) content that infringes the personal rights or Intellectual Property Rights of any third party; (d) content, links or codes that promote or reference software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware (as defined below), worms, Trojan horses, time bombs, cancelbots, bots or other code that generate fraudulent or invalid advertising traffic, corrupted files or similar software; or (e) content that it knows or reasonably should have known to be false, fraudulent or misleading, including content, links or codes that facilitate the creation or use of fraudulent or invalid advertising traffic. “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly view or collect information; (iii) access computer systems to display or distribute unwanted or illicit advertising, content or software; or (iv) violate the written policies of any advertising exchange or publisher that Customer may have access to through the System, as such policies may be updated from time to time. Customer shall use a reputable third party Malware detection vendor to scan all ads that are served to Sites in connection with Customer’s use of the Services. Without limiting any of its rights under this Agreement, fullthrottle.ai may immediately suspend or terminate Customer’s access to the Services without notice and may terminate this Agreement or any Order without any liability to Customer, if Customer fails to comply with this Section.
- Customer represents and warrants that: (a) it is a business, not a consumer, and has the rights, authority and any required permission and consent to enter into this Agreement, and if applicable that it is acting as an agent for a disclosed principal, its advertiser, and that as such, Customer has the authority as agent to incur the Fees charged by fullthrottle.ai for the Services requested on such advertiser’s behalf; (b) neither it nor its Third Party Users are currently the subject of any investigation or prosecution by any governmental or regulatory body or agency that may have a material detrimental effect on users of Customer’s products, services or advertising, or on fullthrottle.ai, any of its Affiliates or any of their respective customers; or (c) if it or any of its Third Party Users becomes involved or is named in any investigation or prosecution by any governmental or regulatory body or agency that may have a material detrimental effect on fullthrottle.ai or users of fullthrottle.ai’s products, services or advertising, then Customer will immediately provide notice to fullthrottle.ai of such action, investigation, complaint or other proceeding, in which event fullthrottle.ai may terminate this Agreement immediately.
- Customer represents and warrants that: (a) it and its Third Party Users have or will obtain all necessary rights, licenses, consents, waivers and permissions, including, without limitation, from advertisers, publishers, users and other third parties, to allow fullthrottle.ai: (i) to store and deliver the Customer Materials and otherwise provide the Services and operate the System on behalf of Customer; (ii) to make any technical or other modifications that it may deem necessary to facilitate the delivery of the Advertisements and related Customer Materials; provided, that fullthrottle.ai will not make any amendments to the creative content of any Advertisements or Customer Materials except as requested by Customer; (iii) to use any Customer Data provided to or collected by fullthrottle.ai in the provision of the Services for Customer and according to Customer’s or its Third Party Users’ instructions; and (iv) to receive, transfer and process any Customer Data from or to any third party according to Customer’s or its Third Party Users’ instructions, whether by API, FTP or other data transfer method; (b) neither Customer nor its Third Party Users, nor any of their respective users, will use the System or any of the Services in a way or for any purpose that infringes or misappropriates any third party’s Intellectual Property Rights or personal or other proprietary rights or in order to harass, abuse, or harm another person; (c) it will ensure that the Customer Materials, the contents of such Customer Materials, the Site Content and any data provided by, or delivered on behalf of, Customer or any Third Party Users to fullthrottle.ai, and Customer’s and its Third Party Users’ promotional and marketing materials and activities in connection with their use of the System or Services, will not be in violation of any third party’s rights, including Intellectual Property Rights, and will not be defamatory, fraudulent, obscene, misleading or otherwise illegal; (d) it will notify fullthrottle.ai of any errors in any Customer Materials and any complaints or claims made in respect of any Customer Materials as soon as the same comes to its attention; and (e) if fullthrottle.ai considers, in its sole discretion, that any Customer Materials breach any of the requirements set forth in this Section, or may subject fullthrottle.ai to material adverse risks, and fullthrottle.ai requests that such Customer Materials be removed or amended, then Customer will withdraw such Customer Materials from the System or amend such Customer Materials to fullthrottle.ai’s satisfaction.
- Customer will ensure that it and any Third Party Users comply with this Agreement. fullthrottle.ai may audit Customer’s use of the Services and observe all of Customer’s activity on the System and Services. Customer will promptly notify fullthrottle.ai of any suspected or alleged breach of this Agreement and will cooperate with fullthrottle.ai regarding: (a) any investigation by fullthrottle.ai of any suspected or alleged violation of this Agreement; and (b) any action by fullthrottle.ai to enforce the terms and conditions of this Agreement. fullthrottle.ai may suspend or terminate Customer’s or Third Party User’s access to the Services upon notice to Customer if fullthrottle.ai reasonably determines that Customer or Third Party User has breached this Agreement.
- Customer represents and warrants that Customer and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority. Customer will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S. Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
- Customer agrees to indemnify, defend, and hold harmless fullthrottle.ai, its Affiliates and their respective officers, directors, employees and agents from and against any and all losses, costs, damages or liabilities, including, without limitation, legal fees, costs and expenses, arising out of any third party claim or action related to Customer’s or any Third Party User’s breach of any of the obligations and warranties set forth in this Section 7, or any other representations, warranties, terms, conditions or obligations of Customer as provided in this Agreement. The foregoing obligations are conditioned on fullthrottle.ai: (a) notifying Customer promptly in writing of such action (provided that the failure to provide prompt notice will only relieve the Customer of its obligation to the extent that it is materially prejudiced by such failure and can demonstrate such prejudice); (b) giving Customer sole control of the defense thereof and any related settlement negotiations upon the Customer’s written notice to fullthrottle.ai of Customer’s intention to indemnify; and (c) cooperating and, at Customer’s request and expense, assisting in such defense; and (d) having the right to participate in, but (subject to Section 7.7(b)) not control, any such defense or settlement, at fullthrottle.ai’s sole cost and expense. Customer will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to or otherwise adversely affect fullthrottle.ai (including any settlement that requires the indemnified party to admit fault or attributes fault to fullthrottle.ai), without fullthrottle.ai’s prior written consent, which will not unreasonably be withheld or delayed. fullthrottle.ai is hereby authorized (but not obligated) prior to, during, and after the notice period to file any motion, answer or other pleading and to take any other action that fullthrottle.ai shall deem necessary or appropriate to protect its interests.
- fullthrottle.ai Responsibilities
- fullthrottle.ai represents and warrants that: (a) it is duly authorized to enter into this Agreement and provide the Services hereunder; and (b) its provision and operation of the Services and System shall be made in compliance with all applicable local, state, federal and international laws, rules, treaties, inter-governmental agreements and governmental orders, regulations and regulatory codes of practice.
- fullthrottle.ai agrees to indemnify, defend, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees and agents from and against any and all losses, costs, damages or liabilities, including legal fees, costs, and expenses, arising out of or related to any third party action to the extent it is based upon a claim that the System or Services, or use thereof in accordance with and subject to the limitations set forth in this Agreement, infringes any Intellectual Property Right of a third party. The foregoing obligations are conditioned on Customer: (a) notifying fullthrottle.ai promptly in writing of such action (provided that the failure to provide prompt notice will only relieve fullthrottle.ai of its obligation to the extent that it is materially prejudiced by such failure and can demonstrate such prejudice); (b) giving fullthrottle.ai sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at fullthrottle.ai’s request and expense, assisting in such defense. Customer shall have the right to participate in, but not control, any such defense or settlement, at Customer’s sole cost and expense. Customer is hereby authorized (but not obligated) prior to, during, and after the notice period to file any motion, answer, or other pleading and to take any other action that Customer may deem necessary or appropriate to protect its interests. Without limitation of the foregoing, if the System or Services become, or in fullthrottle.ai’s sole opinion are likely to become, the subject of an infringement claim, fullthrottle.ai may, at its option and expense: (i) procure for Customer the right to continue using the System or Services; (ii) replace or modify the System or Services so that they become non-infringing; or (iii) accept return of any deliverables provided as a result of the Services, terminate this Agreement or the applicable Order, in whole or in part, as appropriate, upon written notice to Customer and refund Customer any Fees pre-paid in respect of the Services upon such termination. Notwithstanding the foregoing, fullthrottle.ai will be relieved of its obligation under this Section 8.2 to the extent that any third party action is based upon: (A) any Customer Materials; (B) any use of the System or Services not in accordance with this Agreement; (C) any use of the Services in combination with products, equipment, software, or data not supplied by fullthrottle.ai if such infringement would have been avoided if not for the combination with such products, equipment, software, or data; (D) any use of any release of the System or Services other than the most current release made available to Customer; or (E) any modification of the System or Services by Customer, its agents or subcontractors. THIS SECTION 8.2 STATES FULLTHROTTLE.AI’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY THIRD PARTY CLAIMS OF INFRINGEMENT.
- Fees
- All Fees payable under this Agreement by Customer will be made in accordance with the payment terms set forth in this Section 9, and are exclusive of any applicable taxes payable in connection with the Services, including, without limitation, VAT or any relevant local sales taxes, for which Customer will be responsible. All usage of any Services will be determined by fullthrottle.ai metering. Non-payment of any fullthrottle.ai invoice in accordance with the payment terms set forth in this Section 9 will be a material breach of this Agreement.
- Unless otherwise agreed between fullthrottle.ai and Customer in an Order, fullthrottle.ai shall invoice Customer on a monthly basis, and payment of fullthrottle.ai invoices shall be due to fullthrottle.ai upon receipt. Payment shall be made by wire transfer or other method approved by fullthrottle.ai. Customer agrees to pay fullthrottle.ai such Fee amounts in the applicable local currency invoiced by fullthrottle.ai, or such other currencies as Customer and fullthrottle.ai may mutually agree from time to time. Customer agrees to provide fullthrottle.ai with an authorized email address so that FullThrottle may transmit invoices via email delivery.
- Unless otherwise agreed in an Order, the Fees for the Services will be fullthrottle.ai’s then-applicable standard rates. If Customer uses any Services for which the Fees are not specified in an Order, then the Fees for such Services will be fullthrottle.ai’s then-applicable standard rates.
- Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this agreement. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes (“Indirect Taxes”). You will provide such information to fullthrottle.ai as reasonably required to determine whether fullthrottle.ai is obligated to collect Indirect Taxes from you. fullthrottle.ai shall not collect, and you shall not pay, any such Indirect Tax or duty for which you furnish fullthrottle.ai a properly completed exemption certificate or a direct payment permit certificate or for which fullthrottle.ai may claim an available exemption from Indirect Tax. All payments made by you to fullthrottle.ai under this agreement will be made free and clear of any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, you will pay such additional amounts as are necessary so that the net amount received by fullthrottle.ai is equal to the amount then due and payable under this Agreement. fullthrottle.ai will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
- If Customer fails to pay any amount payable by it under this Agreement in accordance with Section 9.2, fullthrottle.ai may charge Customer interest on the overdue amount (payable by Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1.5% per month or the highest rate allowed by law, whichever is less. Such interest will accrue on a daily basis and be compounded on a monthly basis. Customer will also be responsible for payment of all reasonable expenses (including attorneys’ fees and costs) incurred by fullthrottle.ai in collecting any overdue amounts from Customer.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SYSTEM AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND FULLTHROTTLE.AI DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SYSTEM OR THE SERVICES AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, FULLTHROTTLE.AI DISCLAIMS ALL IMPLIED PROMISES WITH RESPECT TO THE SYSTEM AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY PROMISES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. FULLTHROTTLE.AI WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS OR INACCURACIES IN ANY CUSTOMER MATERIALS OR SITE CONTENT; (B) SERVICE INTERRUPTIONS DUE TO FACTORS REPRESENTING INHERENT RISKS ASSOCIATED WITH THE USE OF ELECTRONIC COMMUNICATIONS, INCLUDING NETWORK INTERRUPTIONS (INCLUDING THE INTERNET), COMMUNICATIONS FAILURES, THIRD PARTY SERVER DOWNTIME, POWER OUTAGES OR SYSTEM FAILURES; OR (C) ANY UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF CUSTOMER’S OR ANY THIRD PARTY USER’S CUSTOMER MATERIALS, SITE CONTENT OR OTHER MATERIALS, DATA, IMAGES, SOUNDS, TEXT INFORMATION OR CONTENT. FULLTHROTTLE.AI MAY DISCONTINUE ANY ASPECT OF THE SYSTEM OR THE SERVICES, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE SYSTEM OR THE SERVICES, AT ANY TIME. FULLTHROTTLE.AI ALSO DOES NOT IN ANY WAY MAKE ANY PROMISES THAT THE SYSTEM OR THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED MANNER, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS. IN ADDITION, FULLTHROTTLE.AI MAKES NO PROMISES THAT THE SYSTEM OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE SYSTEM OR THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER CUSTOMER NOR ITS THIRD PARTY USERS HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE ON ANY PROMISES (WHETHER INNOCENT OR NEGLIGENT) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
- Limitation of Liability
- EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.3, IN NO EVENT (EXCLUDING THE EVENT OF BREACH OF SECTION 4, 5, 6, OR 7 BY CUSTOMER) WILL EITHER PARTY ON BEHALF OF ITSELF AND ITS AFFILIATES BE LIABLE FOR ANY LOSSES OR DAMAGES THAT MAY BE SUFFERED BY THE OTHER PARTY, WHETHER THE SAME ARE SUFFERED INDIRECTLY OR ARE CONSEQUENTIAL, AND WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER, THAT FALL WITHIN ANY OF THE FOLLOWING CATEGORIES: (a) SPECIAL DAMAGES EVEN IF THE RELEVANT PARTY WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH SPECIAL DAMAGES COULD ARISE; (b) LOSS OF PROFITS; (c) LOSS OF ANTICIPATED SAVINGS; (d) LOSS OF BUSINESS OPPORTUNITY; (e) LOSS OF GOODWILL; OR (f) LOSS OR CORRUPTION OF DATA.
- IN NO EVENT WILL FULLTHROTTLE.AI’S LIABILITY UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO FULLTHROTTLE.AI BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST OF ANY CLAIMS IS MADE IN CONNECTION WITH THIS AGREEMENT.
- THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 11 AND ELSEWHERE IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW, BUT NEITHER PARTY WILL EXCLUDE OR LIMIT LIABILITY FOR: (a) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS ACTING IN THE COURSE OF THEIR DUTIES; (b) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (c) ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
- Term and Termination.
- Term. The Term of this Agreement will be as set forth in the applicable Order unless terminated earlier in accordance with this Section 12. If no initial Term is specified in the Order, the Term shall run for twelve (12) months. Unless otherwise specified in an Order, the initial Term shall automatically renew for consecutive, subsequent annual Terms (each a “Renewal Term”) unless and until either party provides the other at least thirty (30) days’ written notice prior to the expiration of the then current Term.
- Termination. Either party may terminate this Agreement immediately if: (i) the other party is in material breach hereunder and fails to cure such breach within thirty (30) calendar days of written notice being provided by the party seeking to terminate; or (ii) the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other party (and not dismissed within ninety (90) days). Unless otherwise provided in an Order, fullthrottle.ai may terminate this Agreement or a particular Order for any reason upon sixty (60) days’ prior written notice to Customer. The requirement to make any payment that has become due, in addition to Sections 4 through 8 and 10 through 15 of these Terms of Use, will survive the completion, expiration, termination, or cancellation of this Agreement for any reason, as will any other provision of this Agreement that is intended to survive in accordance with its terms.
- Non-Solicitation. Customer recognizes the substantial expenditure of time and effort which fullthrottle.ai devotes to the recruitment, hiring, orientation, training and retention of its employees, contractors, and vendors (“fullthrottle.ai Personnel”). Accordingly, Customer agrees that, during the Term and for a period of twelve (12) months thereafter, regardless of the reason for such termination, Customer shall not directly or indirectly solicit, interfere with or attempt to entice away or hire, in any capacity, whether as its own employee or through a third-party contractor, any fullthrottle.ai Personnel involved in the provision of Services under this Agreement, or counsel, procure, or assist any other person or entity to do so. If Customer violates the foregoing, Customer agrees to pay fullthrottle.ai an amount equal to six (6) months of such solicited fullthrottle.ai Personnel’s annual compensation. Such payment shall be in USD and made to fullthrottle.ai within thirty (30) days of violation.
- Force Majeure. Neither party will be responsible for delay or failure in performing non-payment obligations under this Agreement resulting from the occurrence of an event beyond the control of such party. Such force majeure events include lightning, flood, hurricane, tornado, fire, war, terrorism, pandemic, strikes, lockouts or other labor disputes, decisions or omissions of authorities and new legislation. Any party that wishes to invoke an event as set forth above will notify the other party of the occurrence of the force majeure event. Should the force majeure event continue for more than thirty (30) days, the party claiming the force majeure event will have the right to terminate this Agreement with immediate effect by giving written notice to the other party.
- General. This Agreement represents the entire understanding between the parties and supersedes all prior written and all prior and contemporaneous oral agreements relating to the subject matter hereof. The parties may not amend these Terms of Use or any Order except by a written agreement of the parties that identifies itself as an amendment to these Terms of Use, or such Order, as applicable; provided that fullthrottle.ai may modify these Terms of Use at any time by posting such modification on the System or applicable fullthrottle.ai website or by notifying Customer by email, and such revised Terms of Use will supersede and replace all earlier versions. If Customer does not agree to any such modification, its sole remedy is to terminate this Agreement upon written notice tofullthrottle.ai. Customer’s and its Third Party Users’ continued use of the System or any portion of the Services will be deemed to be acceptance by Customer and its Third Party Users of any such modified version of these Terms of Use. Notwithstanding the foregoing, if Customer has an existing agreement in force with fullthrottle.ai that specifically overrides a previous version of the fullthrottle.ai Terms of Use, then such existing agreement will remain in full force and effect until expiration or termination in accordance with its terms, without modification by these Terms of Use, to the extent such agreement is in direct conflict with the Terms of Use. These Terms of Use will apply to all Orders submitted in connection with this Agreement, and any preprinted, additional, or supplemental terms in, on or associated with any Customer-submitted ordering documents, including purchase or insertion orders, will not apply and will not be binding upon fullthrottle.ai. fullthrottle.ai may provide notices to Customer, at fullthrottle.ai’s option, by email to the email address provided by Customer to fullthrottle.ai, by mail to the postal address provided by Customer to fullthrottle.ai, or by posting on the System or any fullthrottle.ai website to which Customer has access in connection with this Agreement. It is Customer’s responsibility to ensure that the email address and any other contact information it provides to fullthrottle.ai is updated and correct at all times during the Term. Changes to Customer’s contact information should be sent to Customer’s designated fullthrottle.ai service representative. Customer and fullthrottle.ai are independent contractors and nothing in this Agreement will give Customer the right, power or authority to create any obligation or responsibility on behalf of fullthrottle.ai. Except as otherwise set forth in this Agreement, neither Customer nor fullthrottle.ai will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that (a) fullthrottle.ai may perform any of its obligations or exercise any of its rights under this Agreement through one or more of its Affiliates and (b) nothing in this Agreement shall be construed to prevent fullthrottle.ai or its Affiliates, acting on behalf of fullthrottle.ai, from exercising any rights or remedies granted to the fullthrottle.ai under this Agreement or applicable law. Customer may not assign, sublicense, or transfer this Agreement or any right or duty under this Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 15 will be void and of no force or effect. fullthrottle.ai and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, such as to fullthrottle.ai Affiliates. No waiver of any right, power, condition or remedy is effective unless given in writing and signed by the party waiving such right or condition. No failure or delay on the part of a party in exercising any right, power, condition or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any such right, power, condition or remedy preclude any other or further exercise or the exercise of any other right, power, condition or remedy. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of any provision in any other jurisdiction. Any claim against fullthrottle.ai and/or its Affiliates will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party. As used in this Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity. The defined terms herein will apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. All references in these Terms of Use to “Sections” will be deemed to be references to the corresponding Section of these Terms of Use unless the context requires otherwise. The section headings and subheadings contained in these Terms of Use are included for convenience only, and will not limit or otherwise affect the interpretation of these Terms of Use. This Agreement and every part of this Agreement is controlled by the English language and if the terms of this Agreement or any part thereof are translated into any language, for convenience or any other reason, the English language version will control and the English language interpretation will prevail with respect to any conflicts of interpretation.
- Governing Laws, Jurisdiction, Venue, Notices. This Agreement shall be construed and controlled by the laws of the Commonwealth of Pennsylvania, excluding that body of law known as conflicts of law. You hereby consent to exclusive jurisdiction and venue in the state or federal courts sitting in Philadelphia, Pennsylvania, and hereby waive any objections to jurisdiction and venue in such courts, including any objections based on forum non conveniens. With respect to any proceeding or action arising out of or in any way relating to this Agreement (whether in contract, tort, equity or otherwise), the parties knowingly, intentionally and irrevocably waive their right to trial by jury. All notices to fullthrottle.ai will be made in writing to: FullThrottle Technologies, LLC, Attn: General Counsel, 1475 Phoenixville Pike, Suite 202, West Chester, PA 19380, with a copy via email to legal@fullthrottle.ai. Notices should be sent by certified first-class mail, return receipt requested, or a nationally recognized delivery service. Notices will be deemed received based on the delivery date shown on the written delivery confirmation notice.