Quorum Terms of Service

Effective: June 3, 2019

These Terms of Service together with any applicable Insertion Order(s) and/or Product Addendum(s), (collectively, the “Agreement”) describe the terms and conditions under which you (“Client”) may access and use the Services of Quorum Data, Inc. d/b/a Quorum (“Quorum”).

BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, USING QUORUM’S SERVICES, OR CONTINUING TO USE THIS WEBSITE, CLIENT AGREES TO BE BOUND BY THIS AGREEMENT.
IF CLIENT IS AN AGENCY OR A PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF ITS OWN CUSTOMER, THEN CLIENT REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND ITS CUSTOMER, AND AGREES THAT THE TERM “CLIENT” AS USED IN THIS AGREEMENT ALSO REFERS TO THAT CUSTOMER.
QUORUM MAY MODIFY THE AGREEMENT FROM TIME TO TIME; CONTINUED USE AFTER NOTIFICATION OF AN UPDATE WILL CONSTITUTE ACCEPTANCE.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, CLIENT AGREES TO RESOLVE DISPUTES WITH QUORUM THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND CLIENT WAIVES CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 17.2

1. Definitions
“Account” means a Client account for access to the Platform.

“Ad” means any creative advertisement (in any form, including without limitation display, video, email, or TV) that is targeted to an end user through the Services.

“Quorum Materials” means the Platform, Technology, Documentation, visual interfaces, graphics, design, templates, compilation, computer code, and all other elements of the Service, including related modifications and derivative works. Quorum Materials includes Service Data.

“Agency” means an advertising agency acting on behalf of a Client.

“Applicable Law” means any applicable federal, state and foreign laws or regulations or any industry self-regulatory rules or guidelines (including, but not limited to, the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the DAA Self-Regulatory Principles for Online Behavioral Advertising, the General Data Protection Regulation (EU) 2016/679) that relate to a party’s obligations under this Agreement.

“Authorized Resellers” means resellers approved by Quorum in its sole discretion.

“Client Content” means all logos, Ads, background images, trademarks, fonts, hex codes, images, graphics, text, audio, video files, product feeds, ad copy (including for use in email campaigns) and other content in any media and format provided by or on behalf of Client or obtained by Quorum for use with the Services. “Client Content” does not include Service Data or Performance Data.

“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology (including those setting forth any technical requirements) that are provided to the Client whether by email, screen or click-through display, in-person, or any other method.

“Feedback” means information regarding the features and performance of the Services and Quorum Materials, including (without limitation) reports of failures, errors, bugs, or other malfunctions that Client encounters through its use of the Services.
“Insertion Order” or “Order Form” means a document executed by both parties that specifies the type of Services to be provided to Client by Quorum, the duration of the Services, a budget, fees, and any other specific details for the Services.

“Managed Account” means a Client account that Quorum provides support to that meets minimum spend requirements which may be adjusted from time to time Quorum’s sole discretion.

“MMP” means mobile measurement platform.

“Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that Quorum has partnered with to provide the Services.

“Performance Data” means performance and measurement data made available through the Platform that relates to Client’s Ads, campaigns and use of the Services (whether reported on an aggregated or individual level).

“Platform” means the Quorum website, dashboard, and tools used by the Client to access any of the Services.

“Product Addendum” means any Service-specific terms and conditions.

“Services” means any Quorum offering that Client agrees to receive, subject to this Agreement, any applicable Product Addendum(s), and, if applicable, Insertion Order(s), along with any other documentation provided by Quorum related to the Services. Services also include customer support, troubleshooting, creative advertisement services, and account management services associated with the Services.

“SDK” means Quorum’s software development kit to support its Services.

“Service Data” means data (and each component of such data) that is collected by Quorum from end-users using a pixel (or other script or code) installed on Client’s website, Mobile Advertising Identifiers (MAID) collected directly from partner mobile applications or by resellers of MAID data that Quorum has partnership agreements with, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include any Client CRM Data or Performance Data. If Client has configured or agreed for Quorum to implement the pixel (or other script or code) to send hashed end-user email addresses from Client’s website to Quorum or has authorized Quorum to collect and store hashed end user email addresses, these hashed end-user email addresses will be Service Data.

“Technology” means the Quorum proprietary technology that allows Quorum to provide the Services, including the Quorum pixel (or other script or code), Quorum mobile device ID segments, the Quorum API, the SDK, or other mutually agreed upon means.

2. QUORUM SERVICES
2.1 The Services.
The client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order or Product Addendum. Unless otherwise indicated or modified in such Insertion Order or Product Addendum, this Agreement will apply to any of those Services.

2.2 Quorum License Grant.
Subject to Client’s payment of all applicable fees and the terms set forth in this Agreement, Quorum grants to Client during the term of the Agreement the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense: (a) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (b) for web related Services, to integrate the pixel (or other script or code) into Client’s website for web-related Services; (c) for mobile-related Services, to integrate the Client’s MMP, including but not limited to identifying end-users across mobile app and browser channels, and/or (d) to integrate through other mutually agreed upon means (e.g., integration using the Quorum API).
Further, subject to Client’s payment of applicable fees and its adherence to the terms herein, Quorum grants Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Performance Data as permitted under Applicable Law.

2.3 Respective License Grants by Client and by Quorum.
(a) License to Client Content. Client grants Quorum a non-exclusive, worldwide, royalty-free, sub-licensable and transferable license to access, use, copy, distribute, reproduce, adapt, modify, perform, display, publish, transmit, format, store, and archive the Client Content for the purpose of providing the Services, supporting Client’s use of the Services, and in promotional materials related to the Services. Client agrees that Quorum will retain ownership of its underlying techniques, know-how, templates, and design methods related to Services..
To the extent not already covered by licensing or ownership provisions herein, Client also grants Quorum a non-exclusive, worldwide, royalty-free license to: (a) use, access, copy, transmit, sub-license, index, store, aggregate, and display any information (including Client CRM Data) provided by the Client whether by upload, accessed via an authorization framework or API, transmitted to or entered into on the Platform to perform the Services; and (b) publish, display, and distribute de-identified, aggregated information derived from such information and from Client’s use of the Service for purposes of improving Quorum’s products and Services, and for benchmarking and reporting, provided that any such data is not publicly identified or identifiable as originating with or associated with Client or any individual person.
(b) Cross-Device Services. If Client opts-in to receiving Quorum’s cross-device services in the Platform, Client acknowledges that: (a) such collection and/or usage of hashed email addresses and any other user identifiers will be Service Data; and (b) hashed end-user email addresses and any other user identifier from Client’s website will be stored as a persistent part of Quorum’s cross-device graph. Client further agrees that: (a) Quorum may combine such hashed emails or other user identifiers with data or hashed emails or other user identifiers of other participating clients in order to recognize users across devices; and (b) that Client will make the necessary disclosures of these data collection practices in their privacy notice, as required by Applicable Law.
2.4 Beta Versions. From time to time, Quorum may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, or a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for production use, are not supported (i.e. customer or technical support teams), and may be subject to additional terms. Quorum may discontinue Beta Versions at any time in its sole discretion and may never make them generally available. Quorum has no liability for any harm or damage arising out of or in connection with a Beta Version. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SECTION 11.2 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO BETA VERSIONS OR TRIALS OF THE SERVICE.

2.5 Technical Requirements.
Client will comply with all technical requirements for use of the Services communicated by Quorum to Client via Documentation, which may include: (a) including tags, pixels, script, or code supplied by Quorum on Client’s website; (b) installing the SDK or integrating with Client’s MMP into Client’s mobile or tablet applications; (c) supplying appropriate Client Content necessary for Quorum to provide the Service; and/or (d) allowing access to data collected by Client’s MMP.

2.6 Modifications.
Quorum may make changes to the Services (including discontinuation of all or part of the Services) at any time. Quorum will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to Quorum.

2.7 Display of Ads.
Client can request to work with Quorum (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to Quorum. Client acknowledges that Quorum has limited control where and how often Ads will be displayed within the Network. Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client unless Client excludes the website. Client Content must comply with advertising policy requirements or Quorum may be unable to provide the Services with respect to such Client Content. Quorum retains the authority to remove any Client Content that it deems to be in violation of this Agreement or Documentation, in its sole discretion. Quorum reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies.

2.8 Third Party Terms.
Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the Quorum Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Quorum may accept certain third party terms and conditions as agent on Client’s behalf where necessary for Quorum to perform Services requested by Client (e.g., terms related to running campaigns on Facebook Website Custom Audiences). Quorum shall have no responsibility or liability in relation to such additional terms.
2.9 Advertising Policy Guidelines. Client will adhere to the advertising guidelines as set out by Quorum, Applicable Law, or applicable Documentation. Client is responsible for ensuring that Client Content and Client websites are compliant with these policies. Quorum reserves the right to review campaigns and Ads at any given time. Our Network’s policies and self-regulatory bodies’ codes of conduct are constantly being reviewed and updated, and as such, active or approved campaigns may be reviewed to ensure that they comply with current policies, codes, and legal requirements.

3. AGENCY CLIENTS.
3.1 Authority, Liability, and Direct Relationship.
Where Client is an Agency or Authorized Reseller entering into Services on behalf of its own customer(s): (a) Client represents that it has the authority to act on behalf of such customers with respect to all obligations and representations set forth in this Agreement; (b) upon request, Client will provide Quorum with written confirmation and (if requested) documentation of the relationship between Client and its customer; (c) upon Quorum’s request, Client will provide Quorum with written confirmation that customer has provided it with funds sufficient to make payments pursuant to the Agreement; (d) Client accepts responsibility for the actions of its customer’s Accounts and liability for all expenses incurred through the provision of Services to its customers, and assumes responsibility for ensuring compliance with and breach of this Agreement by its customers; (e) Client will ensure the performance of its customer’s obligations under this Agreement and will have joint and several liability in respect of its customer’s breach of this Agreement; (f) Client’s customer may request at any time that their Account be migrated to another agency or to a direct Account with Quorum and nothing in this Agreement will prevent Quorum and such customer from entering into a direct relationship; and (g) Quorum reserves the right to object to any customer at Quorum’s sole discretion.

3.2 Support and Marketing.
Where Client is an Agency or Authorized Reseller: (a) Quorum will provide commercially reasonable support during Quorum’s normal business hours, but Client acknowledges that they will be solely responsible for providing support to their customers in connection with such customers’ use of the Services; (b) Client is solely responsible for marketing efforts related to the “go to market” life cycle for Services, provided that any marketing materials prepared and/or used by Client are in compliance with Quorum marketing requirements and other Documentation; and (c) Quorum reserves the right to request changes or removal of any Client materials used to market the Services.

4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up.
Setting up an Account with Quorum is free of charge. Client will choose login credentials, including a password, for its Account and Client is responsible for all activities that occur through its Account or with its credentials. Client will secure its Account credentials and will promptly notify Quorum of any breach of security, misuse, or unauthorized use of its Account or credentials.

4.2 Campaign Set Up and Management.
Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred because of changes made using Client’s Account will be included in Client’s regular bill or invoice. Quorum will use commercially reasonable efforts, in accordance with the Documentation, to comply with the budget specified by Client. When Client increases or decreases its budget it may take up to 3 (3) business days for the new authorized budget to take effect.

4.3 Campaign Measurement and Tracking.
Unless expressly agreed to in writing by Quorum, service fees will be based on Quorum’s measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.

4.4 Campaign Optimization.
With notice to the Client, Quorum may optimize towards Client’s performance or goals by programmatically using Client Content to create new content (such as Ads, emails, or other necessary marketing materials). Quorum may then insert this new content into Client’s active campaigns, or create, change, or pause campaigns on the Client’s behalf, subject to Client’s budget. In addition to and separate from Quorum ‘s optimization services and features, Quorum may offer Managed Account Services to Client.

5. PAYMENT TERMS
5.1 Auto-Prepay Accounts.
For prepay accounts, Client agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Client’s Account always and Quorum will pre-charge Client weekly for each campaign budget amount as determined by Client on the Platform. Client authorizes Quorum to charge such amounts using the valid payment details provided by Client. Client understands that all funds transferred to Quorum become the property of Quorum upon transfer to compensate Quorum for costs involved in delivering the Services, including creating and maintaining, Third Party Mobile Device Data, Network, Platform, Technology, and Performance Data. If Client suspends a campaign or cancels Client’s Account, Client may request reimbursement in the amount of the prepaid funds not attributed to any completed campaign(s) within one hundred eighty (180) days after the campaign is paused or this Agreement is terminated, provided that any such reimbursement is at Quorum’s sole discretion. Requests for reimbursement made after one hundred eighty (180) days after the campaign is paused or this Agreement is terminated may not be transacted.

5.2 Auto-Postpay Accounts.
For recurring payment accounts, Client agrees to keep valid payment method information (e.g. credit card or PayPal account information) on file in Client’s Account at all times. Client authorizes Quorum to charge recurring amounts due weekly using the valid payment details provided by Client. Quorum reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by Client within thirty (30) days of receipt or will be barred.

5.3 Insertion Order Accounts.
Quorum may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. Quorum reserves the right to request a prepayment or prepaid retainer from Client at any time. Quorum will send Client a monthly invoice via email reflecting the amount owed by Client to Quorum. Client will pay the amount set out in each invoice, without set-off, within thirty (30) days of its receipt of such invoice. Quorum may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by Applicable Law, whichever is less. Client will reimburse Quorum for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees and costs of collection. Claims relating to invoices or Account charges must be raised by Client within thirty (30) days of receipt or will be barred.

5.4 Non-Payment.
Quorum reserves the right to suspend Client’s campaigns due to failed payments or insufficient balance. Further, If Client develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or Quorum otherwise designates Client as a credit risk, Quorum reserves the right to require prepayment.

5.5 Currency and Taxes.
All payments to Quorum will be made in United States Dollars, unless otherwise agreed to in an Insertion Order or offered through the Platform. Payments are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon Quorum’s net income.

6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership.
Quorum Materials are the sole and exclusive property of Quorum or its third-party licensors, as applicable, and are protected by Applicable Law. Client’s rights to the Quorum Materials are strictly limited to those rights expressly granted in this Agreement and do not include any other licenses. Client Content is the sole and exclusive property of Client or its third-party licensors as applicable and is protected by Applicable Law. Quorum’s rights to the Client Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Client agrees it will not: (a) modify the Quorum Materials or any related proprietary notices; (b) reverse engineer, decompile, disassemble or interfere with any Quorum Materials (except where and to the extent such prohibition is not permitted by law); (c) sublicense, rent, sell, or lease access to the Quorum Materials, or use the Quorum Materials to create any other product, service or dataset; (d) except with respect to Performance Data, log, capture, or otherwise create any record of any data transmitted to or from the Quorum Materials; (e) deliver or introduce any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Quorum Materials; (f) use the Platform for any illegal purposes or any purpose other than using the Services for its intended purpose, which does not include creating or supplementing end user profiles with targetable interests, end user movement profiles, site-specific retargeting, and product-interest information outside of the Services; and (g) make or publish any representations or warranties on behalf of Quorum concerning the Services or Quorum Materials without Quorum’s prior written approval. When reproducing Quorum Materials, Client will include proprietary rights notices contained on the Quorum Materials.

6.3 Export Control Laws.
Quorum Materials may be subject to United States export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Client must comply with all such regulations and is responsible for obtaining any related licenses.

6.4 Feedback.
Feedback provided to Quorum may be used to develop and improve the Service, Quorum Materials, new products, and services. To the maximum extent permitted by law, Quorum owns all right, title, and interest to any such Feedback.

7. DATA RIGHTS AND RESTRICTIONS
7.1 Service Data and Performance Data.
Quorum is the sole owner of the Service Data and the Performance Data and may use either for any purpose allowed by Applicable Law.

8. CLIENTS’ PRIVACY OBLIGATIONS
8.1 General Obligations With Respect to End User Privacy.
Client is responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client agrees to: (i) comply with all Applicable Laws that relate to data protection and individual privacy and publicity rights; (ii) post a publicly-accessible privacy notice on every Client website and mobile app that integrates or uses the Services that discloses in a legally sufficient manner how information (including personal data) is collected through the website or app or both and used by the Client and Quorum, and further discloses its practices with regard to cookies, targeting, and online behavioral advertising (more information found here: https://www.quorum.inc/privacy-policy/ ); and
(iii) inform end users how they may opt-out from receiving targeted advertisements which may include links to the Quorum Privacy Policy Page https://www.quorum.inc/privacy-policy/ or the DAA opt-out page here: http://www.aboutads.info/.

8.2 Additional Obligations With Respect to End User Privacy in California.
By or before January 1, 2020, Client agrees to update the Privacy Notice on their website to provide notice to California residents and a link to Quorum’s Privacy Notice that addresses any applicable disclosures, opt-outs or opt-ins, and advises California Residents of their rights as required under the California Consumer Protection Act (“CCPA”)..

9. WARRANTIES
9.1 By Client. Client represents and warrants to Quorum that:
(a) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (b) the Client Content and the Client websites, mobile or tablet applications (“Client Sites”) do not include, and do not give access via hyperlinks to any property containing materials that are obscene, defamatory or contrary to any Applicable Law; (c) Client Content and Client Sites comply at all times with the Documentation and Applicable Laws in all jurisdictions where Client Ads and Client Sites are viewed; (d) Client Sites do not display, reference, link to, or endorse any content that violates this Agreement or the Documentation; (e) the Client Content does not infringe or misappropriate the rights of any third party; and (f) the collection, transfer, use and disclosure of Service Data or Client CRM Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Client) or any statements in its own posted privacy notice or similar privacy statement.

9.2 By Quorum. Quorum represents that:
(a) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (b) the Technology will perform substantially. For any breach of this Section 9.2, Quorum’s sole liability and Client’s sole remedy will be re-performance of the Services by Quorum or Client’s termination rights under Section 13.1.

9.3 Disclaimer.
EXCEPT FOR THE EXPRESS REPRESENTATIONS STATED IN THIS SECTION 9, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, QUORUM EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, COMMON LAW OR CUSTOM. THE SERVICES AND MATERIALS MADE AVAILABLE BY QUORUM UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) QUORUM EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT; (B) QUORUM DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED; AND (C) QUORUM MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH THE USE OF THE SERVICES.

9.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, QUORUM WILL HAVE NO LIABILITY TO CLIENT IN CONNECTION WITH (A) CLIENT’S FAILURE TO PROVIDE NOTICES TO, OR OBTAIN CONSENTS FROM, ITS END USERS REGARDING ITS PRIVACY PRACTICES OR THE SERVICES DESCRIBED HEREIN WHICH ARE REQUIRED BY APPLICABLE LAW; (B) THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT; OR (C) DATA SECURITY OR DATA USE IF QUORUM ACTS IN ACCORDANCE WITH CLIENT’S INSTRUCTIONS. THE FOREGOING DOES NOT LIMIT QUORUM’S LIABILITY AS TO ANY END USER WHO IS NOT A CLIENT.

10. INDEMNIFICATION
10.1 Client Indemnification.
Client will defend, indemnify, and hold harmless Quorum and its officers, directors, employees and subsidiaries from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding: (a) Client’s use of any services subject to this Agreement, including without limitation regarding Client’s breach of this Agreement; or (b) any violation, infringement, or misappropriation of any law or third party right (including intellectual property, property, privacy or publicity rights) by Client, Client’s own customers (where Client is an Agency or Authorized Reseller), the Client Content or Client CRM Data.

10.2 Quorum Indemnification.
Quorum will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the Quorum Materials, but excluding any software incorporated into Quorum ‘s software under an open source license. In no event, will Quorum have any liability under this Section 11.2 arising from: (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the Quorum Materials with any third-party software, process, or service not provided by Quorum. Quorum’s indemnification obligations in this Section 11.2 will be Quorum’s sole liability and Client’s sole remedy for any claims that the Services or Quorum Materials violate, infringe, or misappropriate any intellectual property right.

10.3 Indemnification Process.
The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or pay any amount (not covered by the indemnifying party) requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed; and (b) the indemnified party may join in the defense with its own counsel at its own expense.

11. LIMITATIONS ON LIABILITY
11.1 Disclaimer of Damages. QUORUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF UORUM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL QUORUM’S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO QUORUM UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

11.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. TERMS AND TERMINATION
12.1 Term and Termination.
This Agreement will remain in full force and effect while Client uses the Services and will terminate upon written notice of cancellation of Client’s Account by Quorum or Client, such termination to take effect forty-eight (48) hours from receipt of such termination notice (or at such other designated time, at least forty-eight (48) hours in advance).

12.2 Post-Termination Obligations.
Upon termination of this Agreement: (a) Quorum will cease providing the Services and permitting access to the Platform to Client; (b) Client will, within thirty (30) days, pay to Quorum any fees that have accrued prior to the effective date of termination; and (c) Client will remove the Quorum pixel from Client Sites and Quorum will not be liable for any damages (or any benefit to Quorum) resulting from Client’s failure to remove the pixel. Provided Client is not in breach of the Agreement, subject to Section 5, Quorum may refund Client for any amounts prepaid for Services that were not performed prior to termination. The following Sections will survive expiration or termination of this Agreement: Sections 1, 2.3, 5 (as applicable), 6, 7, and 9-13, 14 (as applicable), and 15-18.

12.3 Insolvency.
Quorum may immediately terminate this Agreement and move Client to prepay pursuant to Section 5 in the event that: (a) Client (i) fails to satisfy any enforceable, final and material judgment against it; (ii) fails to pay its fees as they become due; or (iii) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts; or (b) a court appoints, or Client makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code) for Client or all or substantially all of its assets. Client acknowledges that Quorum may set off any liability owed to Client against any liability for which Quorum determines Client is liable to Quorum related to Services under this Agreement. In the event that an Agency (but not the Agency’s applicable customer) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts, Quorum shall have the right to notify Client directly in effort to settle outstanding liabilities under this Agreement.

13. TRADEMARKS
Each party retains all right, title, and interest to its own logos and trademarks. Quorum logos and names are trademarks of Quorum Data, Inc. All other trademarks and product or company names mentioned in the Services or Quorum Materials are the property of their respective owners and may not be used without the prior written permission of the owner.
Notwithstanding the foregoing, Quorum may: (a) use Client’s logos, name, and any trade names to indicate in its promotional materials that Client is a client of Quorum; and (b) disclose the name of the Client as required by Applicable Law.

14. CONFIDENTIALITY
Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (a) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (c) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (d) is or becomes part of the public domain through no act or omission of the Receiving Party. Each Receiving Party will (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 15; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 15 will survive termination of this Agreement until the expiration of three (3) years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.

15. ASSIGNMENT
Client may assign this Agreement upon written notice to Quorum to any acquirer of all or substantially all of its assets or stock, or to a corporate affiliate. Any other attempt to transfer or assign is void. Quorum retains the rights to assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

16. RESOLVING DISPUTES: FORUM, ARBITRATION, CLASS ACTION WAIVER, GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY, AS IT INVOLVES A WAIVER OF CERTAIN RIGHTS TO BRING LEGAL PROCEEDINGS, INCLUDING AS A CLASS ACTION FOR RESIDENTS OF THE U.S.

16.1 Please contact Quorum first! Quorum wants to address Client’s concerns without resorting to formal legal proceedings. Before filing a claim, Client agrees to try to resolve the dispute informally by contacting Quorum first through or support@quorumoutdoor.com via their allocated Account Manager.
16.2 Judicial forum for disputes. Client and Quorum agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the federal or state courts located in New York, NY, subject to the mandatory arbitration provisions below. Client and Quorum consent to venue and personal jurisdiction in such courts. Notwithstanding the above, we agree that Client alternatively may attend any arbitration proceedings telephonically or videographically, in which case Quorum will do so as well. U.S. RESIDENTS ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS

ACTION WAIVER:
16.3 Arbitration.
Both Parties Agree to Arbitrate. Client and Quorum agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Arbitration Procedures. The American Arbitration Association (“AAA”) (https://www.adr.org) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (https://www.adr.org/sites/default/files/commercial_rules.pdf). The arbitration will be held in the United States in accordance with the venue specified in Section 17.2.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. Quorum will pay all arbitration fees for Client on a pre-pay plan. Quorum will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Client’s claim is frivolous.
Exceptions to Agreement to Arbitrate. Either Client or Quorum may assert claims, if they qualify, in small claims court in San Francisco, California. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Arbitration will not be binding with regards to the Quorum Materials at Quorum’s sole discretion. If the agreement to arbitrate is found not to apply to Client or Client’s claim, Client agrees to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California to resolve Client’s claim.

Opt Out of Agreement to Arbitrate. Client can decline this agreement to arbitrate by sending an email within thirty (30) days of first accepting this Agreement to arbitration_optout@quorumoutdoor.com clearly stating that Client wishes to opt out of arbitration with Quorum and include Client’s first and last name, the company for which the account was created, and the email address associated with the account.

16.4 Class Action Waiver.
Both parties agree to resolve any disputes, claims, or controversies on an individual basis, and that any claims arising out of, relating to or in connection with this Agreement (such as with respect to their validity or enforceability), the Quorum Materials, or any services provided by Quorum will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding.
16.5 Controlling Law. This Agreement is governed by the law of the State of New York except for its conflicts of laws principles, unless otherwise required by a mandatory law of any other jurisdiction.

17. MISCELLANEOUS
17.1 Amendments. Quorum reserves the right to revise this Agreement, and Client’s rights and obligations are at all times subject to the Agreement then posted at Quorum.inc. Client’s continued use of the Service constitutes acceptance.

17.2 Independent Parties. Quorum is an independent contractor and not an agent of Client in the performance of this Agreement. There are no third-party beneficiaries (except the indemnities referenced herein).

17.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding use of the Services and will supersede all prior agreements between the parties whether, written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.

17.4 Force Majeure. Quorum will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond Quorum’s reasonable control.

17.5 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.

17.6 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

17.7 Third-Party Website Disclaimer. Links to third-party websites from Quorum Services do not imply endorsement by Quorum of any products, services or information presented therein, nor does Quorum guarantee the accuracy of the information contained on them.

17.8 Order of Precedence. In the event of a conflict or inconsistency that relates to the subject matter hereof between any of the terms of the following documents, the following order of precedence shall control: (a) Insertion Order or Order Form; (b) Product Addendum; (c) this Agreement. This Agreement and all terms herein are incorporated by reference into any Insertion Order Form, or Product Addendum except as explicitly set forth to the contrary in such document.

17.9 Notice. All notices to Quorum must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by Quorum. Legal notices to Quorum must be sent to legalnotices@quorumoutdoor.com with a copy to Quorum Data, Inc. dba Quorum, Attn: Legal, 2570 Winhall Hollow Rd. S. Londonderry, VT 05155, U.S.A. Notices to Client will be sent to the Client Account email address on file and/or posted on the Platform dashboard and are deemed effective when sent or posted.