Reach Real People. Get Real Results.™
© Pontiflex Inc. 2011. All Rights Reserved.
This Customer Agreement ("Customer Agreement,") is a contract between you and Pontiflex Inc ("Pontiflex", "we" or "us") governing your use of the Pontiflex™ data transfer service and any related products and services available through our Website (www.Pontiflex.com) (the "Site") (collectively the "Services"). As used in this Customer Agreement, "Pontiflex" means Pontiflex Inc, a Delaware corporation, with offices at 45 Main Street, Suite 1101, Brooklyn, NY 11201. "You" and "your" means the Person completing and submitting the Pontiflex application form (the "Application Form"). Your use of our Site and Services is also subject to our Terms of Service (URL), Acceptable Use Policy (URL) and Privacy Policy (URL) which are incorporated herein.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT, TERMS OF SERVICE, ACCEPTABLE USE POLICY AND PRIVACY POLICY, PLEASE DO NOT USE OR ACCESS OUR SERVICES.
You must read, agree with, and accept all of the terms and conditions contained in this Customer Agreement, our Site Terms of Service and Acceptable Use Policy and our Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may participate in a Pontiflex Program (as hereinafter defined) and use our Services. To the extent that this Customer Agreement conflicts with our Site Terms of Service, Acceptable Use Policy or Privacy Policy, the terms of this Customer Agreement shall control. We strongly recommend that, as you read this Customer Agreement, you also access and read the information contained in the other pages and Websites referred to in this document, as they may contain further terms and conditions that apply to you as a Pontiflex user. Please note: underlined words and phrases are links to these pages and Websites. By accepting this Customer Agreement, you also agree that your use of other Pontiflex Websites and Services will be governed by the terms and conditions posted on those policies, terms and conditions.
Each of these policies may be changed from time to time and are effective immediately after we post the changes on our Website. In addition, when using particular Services, you agree that you are subject to any policies or rules which are posted in conjunction with those Services. All such posted policies or rules are hereby incorporated by reference into this Customer Agreement.
YOUR USAGE OF OUR SERVICES SHALL CONSTITUTE YOUR AGREEMENT TO ACCEPT AND ADHERE TO THE TERMS AND CONDITIONS SET FORTH IN THIS CUSTOMER AGREEMENT, AS WELL AS THE OTHER POLICIES, TERMS AND CONDITIONS INCORPORATED HEREIN AND ANY MODIFICATIONS OR ADDITIONS HERETO IMPLEMENTED BY PONTIFLEX FROM TIME TO TIME IN ITS SOLE DISCRETION.
As used in this Customer Agreement, the following capitalized terms shall have the meanings ascribed below:
"Advertiser" means an advertiser or agency that receives data from Media Companies via our Services.
"Field"
A field means an element of any consumer data entered into our Services, each element of which is a portion of a Record. For example, if a co-registration offer requires a user to provide their first name, last name, and email address, that would constitute three (3) Fields.
"Media Company" means a Website publisher or Website (or network of Websites) that collect and send Records via our Services to Advertisers.
"Person" means a natural person and any corporation, limited liability entity, organization, association, partnership, proprietorship or other legal entity.
"Placement" means any data transfer using our Services.
"Prohibited Activity" means any activity or practice that Pontiflex, in its sole discretion, deems improper or objectionable. See "Pontiflex Acceptable Use Policy" (URL).
"Prohibited Content" means any content that Pontiflex, in its sole discretion, deems improper or objectionable, including without limitation, content that contains or promotes (a) violence or hate; (b) discrimination based on race, sex, religion, ethnicity, nationality, disability, sexual orientation, or age; (c) illegal activities; (d) violation of intellectual property rights; (e) defamatory or libelous content, and (f) all other prohibited content identified in our Acceptable Use Policy (click here).
"Record" means a single row of data, as comprised by one or more Fields sent through the Pontiflex system using our Services.
"Website" means an HTML document accessible on the Internet owned, controlled or maintained by a Person.
"User" means any user of or visitor to your Website.
To send data via our Services, a Person must complete our Application Form. We may accept or reject your Application Form as a matter of our sole discretion. Your Application Form and the terms of this Customer Agreement shall not apply to you unless we accept your Application Form.
If you are participating in the Pontiflex Program (the "Program") as a natural person you affirm you are 18 years old or older. If you are under the age of 18 years of age, you may not use our Services. If your Website contains any Prohibited Content or promotes any Prohibited Activities, you are not eligible to participate in a Pontiflex Program relating to our Services. If we do not discover that your Website contains Prohibited Content or promotes Prohibited Activities until after a Person has been accepted into a Pontiflex Program and has sent Records, we may, as a matter of our sole discretion, immediately terminate this Customer Agreement, disable your Placement, and retain any money paid but not yet payable to the Advertiser or Publisher hereunder. The foregoing remedies are in addition to any other contractual, legal or equitable remedies available to us.
Provided that you comply with all of the provisions of this Customer Agreement and other Pontiflex agreements and policies incorporated herein, and any related forms, instructions or other documents published by us from time to time in our sole discretion, Pontiflex hereby grants to you a nonexclusive, limited, revocable license to send Records via our Services. Your use of Pontiflex- or Advertiser-owned or licensed copyrighted materials in violation of this Customer Agreement is strictly forbidden and will result in this limited license being immediately revoked without further act by Pontiflex, and may further result in your being held liable under applicable law for damages caused by such violation.
You will pay us for use of our Services according to the Pontiflex Fee Schedule. The Pontiflex Fee Schedule URL may be accessed via the footer of any Pontiflex web page. Fees are determined by Pontiflex and are subject to change with 48 hours prior notice.
Our Services, by their nature as data transfer services, involve the sending of personal data between parties via our network. This data may include, but is not limited to, email address, address, date of birth, and other personal information (collectively, "User Data"). All User Data shall be the sole, exclusive and proprietary property of the parties sending such data. With respect to such User Data, we act solely as a transfer agent, and retain no ownership of the data being processed, transferred and stored by our servers. Both you and Pontiflex shall each treat User Data sent pursuant to this Customer Agreement in accordance with the respective applicable internal privacy policies then in effect. Unless law or legal process otherwise compels disclosure, the terms of this Customer Agreement shall remain confidential and each party shall limit disclosure of any provision hereof to only those employees and third-party service providers with a need to know such information. Notwithstanding the preceding sentence, the parties may each publicly disclose the general nature of the Pontiflex Program, provided that in no event shall such general description include the financial terms hereof.
The term of this Customer Agreement shall commence upon our acceptance of your completed Application Form and shall terminate upon termination by either party. Except as otherwise provided in this Customer Agreement, (a) you may terminate this Agreement at any time, upon thirty (30) days prior written notice to Pontiflex and, (b) Pontiflex has the right to terminate all Services provided to you at any time, in its sole and absolute discretion, with or without notice, for any or no reason. In addition, and without limiting the foregoing, we may, in our sole discretion, terminate or freeze your data transfer(s) should your credit become impaired.
You are solely responsible for the development, operation, and maintenance of your Website and for all materials and data collected via your Website. You will be solely responsible for (a) the technical operation of your Website and all related equipment; (b) posting Placements on your Website; (c) the accuracy and appropriateness of materials posted on your Website; (d) ensuring that materials posted on your Website do not violate or infringe upon the rights of any third party or otherwise constitute Prohibited Content or promote Prohibited Activity; and (e) security of your Website to hackers and viruses. Pontiflex disclaims all liability in any way relating to your Website, and you shall indemnify, defend and hold Pontiflex harmless from any claims, suits, actions, damages and liability in any way related to your Website. You are solely responsible for sending data to use in the correct format, with the correct content at the times required for any data transfer under this Customer Agreement.
We may modify any of the terms and conditions contained in this Customer Agreement, at any time and in our sole discretion, by posting a new agreement on the Pontiflex Website dedicated to our Program relating to our Services. Unless otherwise provided in the revised agreement, the modified terms will take effect immediately when posted. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR SOLE AND ONLY RECOURSE AND REMEDY IS TO TERMINATE THIS CUSTOMER AGREEMENT. YOUR CONTINUED PARTICIPATION IN OUR PROGRAM FOLLOWING THE MODIFICATION OF THIS CUSTOMER AGREEMENT WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF AND AGREEMENT TO THE MODIFICATION.
You and Pontiflex are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, franchise, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on the Website or otherwise, that reasonably would contradict anything stated in this Customer Agreement. You, as an independent contractor, shall have sole responsibility for your expenses, employees, sales representatives and agents, and shall indemnify and hold Pontiflex harmless from same.
YOUR SOLE AND EXCLUSIVE REMEDY AGAINST PONTIFLEX HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SITE.
YOU ACKNOWLEDGE AND AGREE THAT PONTIFLEX PROVIDES THE SERVICES "AS IS" AND "AS AVAILABLE", AND MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO OUR SERVICES OR OUR PROGRAM, OPERATION OF THE PLACEMENTS, OR THE ACCURACY OF ANY INFORMATION DELIVERED HEREUNDER, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENTS, AVAILABILITY, RELIABILITY, TIMELINESS, ACCURACY, SECURITY, COMPLETENESS, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION OR FREEDOM FROM PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENTS, WHETHER ARISING BY LAW, EQUITY, CUSTOM OR CONDUCT. PONTIFLEX SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON, AND PONTIFLEX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, PONTIFLEX MAKES NO REPRESENTATION THAT OPERATION OF OUR SERVICES, PROGRAM OR PLACEMENTS WILL BE UNINTERRUPTED, COMPLETELY SECURE OR ERROR-FREE, AND PONTIFLEX WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
PONTIFLEX MAKES NO WARRANTY OF ANY KIND AS TO THE RESULTS THAT MAY BE OBTAINED FROM OUR SERVICES. FURTHERMORE, PONTIFLEX MAKES NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY OFFER SERVED VIA OUR SERVICES OR ANY PRODUCTS, SERVICES OR BENEFITS ORDERED OR OTHERWISE ACQUIRED THROUGH OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH OUR SERVICES.
You hereby represent and warrant to Pontiflex (a) that you shall conform in all respects to the terms of this Customer Agreement; (b) that this Customer Agreement constitutes a legal, valid and binding obligation, enforceable against you in accordance with its terms; and (c) that the execution, delivery and performance by you of this Agreement are within your legal capacity and power, has been duly authorized by all requisite action on your part, requires the approval or consent of no other persons, and neither violates nor constitutes a default under (i) the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you.
You shall indemnify, defend and hold harmless Pontiflex, its equityholders, officers, directors, employees, agents, partners, insurers, successors and assigns, from and against any and all third-party claims, losses, liabilities, suits, actions, damages and expenses (including reasonable attorneys' and accountants' fees and costs) of any nature whatsoever threatened, incurred or suffered by Pontiflex (collectively "Losses"), that arise from or in any way relate to (i) infringement of third-party intellectual property rights by you or your Website; (ii) the breach of any representation or warranty by you; (iii) any claim related to the your Website, Prohibited Activity or Prohibited Content, including, without limitation, any claims arising from or related to your failure to send correct data to us, in the correct format, at the times required or otherwise fail to meet your obligations so that our Services may be fully performed or (iv) any non-compliance with applicable laws.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of such party.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS CUSTOMER AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE SERVICES AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS CUSTOMER AGREEMENT.
The parties acknowledge and agree that submission of the Application Form and acceptance of that application by Pontiflex will be completed either online or by electronic mail and that no "hard" copy of the Customer Agreement will be executed by the parties, Your participation in the Services shall constitute the valid and legally binding agreement of the parties' to be bound to their respective obligations hereunder. Any waiver of any right or obligation cannot be implied or inferred by conduct, but must in each instance be in a writing signed by the party to be bound. And any waiver in one instance shall not be deemed a continuing waiver of the same or any other provision in this Customer Agreement unless specifically stated in writing to the contrary.
Except actions for injunctive relief which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes or controversies arising out of, relating to, or concerning any interpretation, construction, performance or breach of this Customer Agreement shall be submitted to a single arbitrator conducted in accordance with JAMS in a proceeding in New York City, New York. The demand for arbitration shall be filed within a reasonable time after the controversy or claim has arisen.
The laws of the United States and the State of New York govern this Customer Agreement, without reference to rules governing choice of laws. Any action relating to this Customer Agreement must be brought in the federal or state courts located in NY, NY, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement to any other Person, by operation of law, merger, consolidation or otherwise, without Pontiflex's prior written consent. Subject to that restriction, this Customer Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Pontiflex's failure to enforce your strict performance of any provision of this Agreement does not constitute a waiver of Pontiflex's right to subsequently enforce such provision or any other provision of this Agreement.
Reach Real People. Get Real Results.™
© Pontiflex Inc. 2011. All Rights Reserved.