Adthena Web-Application Subscription Agreement

Standalone Account Terms and Conditions

This Adthena Ltd (company number 8171866, having its offices at 30 Churchill Place, London, E14 5RE, United Kingdom) (“Adthena”) Web-Application Subscription Agreement (this “Agreement”) contains the terms and conditions that apply to the access to and use of the Services by you (the “Customer”). With effect from the date Customer subscribes, “Adthena” means the Adthena Contracting Entity (as defined in Section 4(h)), and this Agreement continues with that entity in accordance with that Section.

IMPORTANT — EXISTING AGREEMENT: If Customer (or any of its affiliates) is, at the time Customer accesses or uses the Services, party to a separately-executed Master Subscription Agreement, master services agreement, enterprise subscription agreement or other similar written agreement with Adthena that is then in force (an “Existing Agreement”), that Existing Agreement (together with any order forms or schedules entered into under it) shall govern Customer’s use of the Services, and this Agreement shall not apply.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.

CUSTOMER ACKNOWLEDGES THAT IT IS ENTERING INTO THIS AGREEMENT AS A BUSINESS, FOR PURPOSES RELATED TO ITS TRADE, BUSINESS, CRAFT OR PROFESSION, AND NOT AS A CONSUMER.

IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORISED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICES.

Adthena reserves the right to reject Customer’s acceptance of this Agreement if it fails to meet required criteria, as determined in Adthena’s sole discretion.

1. Definitions

• “Adthena Group” means Adthena Ltd and any entity that directly or indirectly controls, is controlled by, or is under common control with Adthena Ltd, including Adthena Inc and Adthena APAC Pty Ltd.
• “Adthena Materials” means, collectively, the Services, Results and Documentation.
• “Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
• “Billing Start Date” means the date on which the Subscription Fee begins to accrue, being: (i) where Customer subscribes through the Adthena Web-Application, the date determined in accordance with Section 4(g); and (ii) otherwise, the date communicated to Customer in the welcome email and/or first invoice issued by Adthena, which may, at Adthena’s discretion, be the date Customer first gains access to the Services or a later date (for example, where a promotional free-of-charge period is offered).
• “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Services by Customer or Authorised Users.
• “Customer Facilities” means Credentials and any account, hardware, system or other facility within Customer’s custody or control.
• “Documentation” means the documentation made publicly available by Adthena, which sets out the user instructions for the Services.
• “Domain(s)” means the domain(s) Customer provided as part of its account registration, or as otherwise notified to Adthena from time to time.
• “Existing Agreement” has the meaning given in the preamble to this Agreement.
• “Geographies” means the geographies Customer provided as part of its account registration, or as otherwise notified to Adthena from time to time.
• “Initial Services” means the features of the Adthena Web-Application (as defined in the definition of “Services”) that are: (i) where Customer has subscribed, described in the Subscription Plan displayed on the Checkout Page at the time Customer subscribes; and (ii) until Customer subscribes, described on the Sign-Up Page or otherwise made available to Customer’s account for the purposes of the Trial Period or Grace Period.
• “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
• “Order Form” means any separately executed written order form between Customer and Adthena specifying the applicable Services, fees, payment terms and term. Where no Order Form has been executed, the Subscription Plan applies in its place.
• “Results” means the data and/or results generated through use of the Services and Documentation, including any reports and the responses to any calls issued to an Adthena API whether or not such reports and/or responses have been cached or exported.
• “Services” means access to the web-application accessible at https://app.adthena.com/ (or such successor address as Adthena may notify to Customer) (the “Adthena Web-Application”) for use in respect of the Domain(s), comprising the Initial Services as varied from time to time, whether (i) by agreement between the parties (which agreement may be evidenced by Customer’s upgrade of its Subscription Plan or by an Order Form) or (ii) by Adthena in accordance with Section 4(c). Customer’s subscription entitles it only to the Initial Services unless and until varied in this way.
• “Sign-Up Page” means the registration page within the Adthena Web-Application through which Customer registered for the Services. “Checkout Page” means the page within the Adthena Web-Application on which Customer selects the Subscription Plan, enters its payment card details and confirms its subscription, and on which the Subscription Plan and Subscription Fee are displayed.
• “Subscription Fee” means the recurring fee payable by Customer for the Services, as specified in (i) the Order Form if one has been executed or (ii) otherwise, the fee displayed on the Checkout Page at the time Customer subscribes, as confirmed to Customer in the subscription confirmation and/or first invoice or receipt issued by Adthena.
• “Subscription Plan” means the package of features of the Adthena Web-Application and the associated Subscription Fee, billing currency and billing frequency, in each case as displayed on the Checkout Page at the time Customer subscribes and confirmed to Customer in the subscription confirmation and/or first invoice or receipt issued by Adthena, as varied in accordance with this Agreement.
• “Support” means onboarding and ongoing email support provided by Adthena for the Services.

2. Grant of Rights and Restrictions

• Grant of Rights. Customer’s use of the Services is subject to and governed by the terms and conditions in this Agreement. During the term of this Agreement and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement, Adthena hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Adthena Materials solely for Customer’s internal business operations and only in the form and through the means made available by Adthena under this Agreement. Notwithstanding the foregoing, Customer shall have a perpetual licence to use any Results downloaded or otherwise permanently stored by Customer outside of the Services; provided that such use shall be in accordance with the terms and conditions of this Agreement.
• Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself nor allow its Authorised Users to, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon any Adthena Materials; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of any Adthena Materials; (iii) access any Adthena Materials for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to any Adthena Materials; (iv) take any action that imposes an unreasonable or disproportionately heavy load on any Adthena Materials or related infrastructure or that negatively affects the ability of others to access or use any Adthena Materials; (v) use spiders, crawlers, robots, scrapers or other similar means to access any Adthena Materials; (vi) rent, lease, lend, sell or sublicence any Adthena Materials, or otherwise provide access to any Adthena Materials as part of a service bureau or similar fee-for-service purpose; or (vii) access or use any Adthena Materials in any manner that does not comply with all applicable laws and regulations.

3. Responsibilities

• Technical Requirements. Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access any Adthena Materials, including computers, operating systems, web browsers and storage devices. Where Customer’s Services include any feature that automatically enables or disables search terms, bids or other settings in Customer’s search-advertising or AI-advertising accounts (including, without limitation, the feature commonly known as “Brand Activator”), Customer shall be solely responsible and liable for its configuration of such feature and the criteria used therein, and shall indemnify, defend and hold Adthena harmless against any Loss to the extent arising therefrom.
• Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorised access to or use of any Adthena Materials through use of Customer Facilities, Customer shall promptly give written notice to Adthena of such breach and make reasonable efforts to eliminate it.
• Third-Party Account Linking. Where Customer’s Services include features that depend on access to Customer’s Google Ads accounts (such features being identified in the Documentation, on the Sign-Up Page or on the Checkout Page) (“Google Features”), Customer shall, as a condition of Adthena providing such features, link the relevant Google Ads accounts to Adthena’s Google Ads Manager Account (commonly known as an “MCC” link) at the level of access required by Adthena (which, unless otherwise stated, will be read-only). Where Customer’s Services include features that depend on access to Customer’s ChatGPT Ads (or equivalent generative-AI advertising) accounts (“ChatGPT Features”), Customer shall, as a condition of Adthena providing such features, grant Adthena access via the linking facility within the ChatGPT Ads console (or any successor or equivalent mechanism made available by the relevant provider) at the level of access required by Adthena.
• Maintenance of Linking. Customer represents and warrants that it has the authority to control advertising activity for the Domain(s) and to grant the access described in Section 3(c). Customer will maintain the linking described in Section 3(c) for the duration of this Agreement in respect of any Google Features or ChatGPT Features that are active on its account. Failure to establish or maintain such linking will, without prejudice to Adthena’s other rights, result in the affected Google Features or ChatGPT Features (as applicable) being unavailable, but shall not by itself terminate or invalidate this Agreement in respect of features that do not require such linking. For the avoidance of doubt, Adthena will at no time be given ownership, proprietary rights or control over the Customer’s Google Ads, ChatGPT Ads or equivalent data.

4. Free Trial, Fees and Taxes

• Subscription Fee. Customer shall pay Adthena the Subscription Fee in accordance with this Section 4. The Subscription Fee, the currency in which it is denominated, and the billing frequency, are those displayed on the Checkout Page at the time Customer subscribes and confirmed in the subscription confirmation and/or first invoice or receipt issued by Adthena, except that if Customer has executed an Order Form, the fees and payment terms in that Order Form shall apply in place of those displayed on the Checkout Page. No Subscription Fee is payable until Customer has subscribed in accordance with Section 4(g). By subscribing, Customer purchases the Initial Services only. Any additional features are made available only as provided in the definition of “Services”, and may be subject to additional or varied fees agreed in accordance with this Agreement or notified under Section 4(c). Pricing and plan information shown on Adthena’s website or in marketing materials is indicative only and does not form part of this Agreement. The Subscription Fee is exclusive of value added, sales, use, excise or other similar taxes, which shall be added to invoices or charges where applicable.
• Billing. No Subscription Fee shall accrue or be invoiced or charged in respect of any period prior to the Billing Start Date. From the Billing Start Date onwards, the Subscription Fee will be charged in advance at the frequency stated on the Checkout Page (or in an Order Form, where applicable). The first charge will be made on or about the Billing Start Date. Where Customer pays by payment card under Section 4(g), the Subscription Fee is payable on, and will be charged on, each Billing Date, and Adthena will make an invoice or receipt available for each charge. Where Customer terminates this Agreement in accordance with Section 6, no further Subscription Fee will accrue after the date on which termination takes effect under Section 6(a); however, no pro-rata refund of any Subscription Fee already invoiced or charged shall be due.
• Fee Changes. Adthena may modify the Subscription Fee, or change the composition of the Services included in the Subscription Plan, by giving Customer not less than thirty (30) days’ prior written notice (email being sufficient). If Customer does not wish to accept the change, Customer may terminate this Agreement at any time before the change takes effect by giving written notice to Adthena, and such termination will be effective on (or before) the proposed effective date of the change. If Customer does not terminate before the effective date of the change, the change will apply from that date. Once a change under this Section 4(c) takes effect, references in this Agreement to the Services and the Subscription Plan shall be read as varied accordingly.
• Late Payment. If Customer fails to pay any invoice or charge when due (including where a card payment is declined or fails), Adthena may retry the charge on one or more occasions and may revoke or suspend the Services for the duration in which such invoice or charge remains unpaid. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
• Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If Adthena has the legal obligation to collect any Taxes, Customer shall reimburse Adthena upon invoice by Adthena. If Customer is required by law to withhold any taxes from its payments to Adthena, Customer shall provide Adthena with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimise such payments.
• Free Trial and Grace Period. Where Adthena offers a free trial of the Services and Customer registers for it through the Adthena Web-Application, Customer may access and use the Services free of charge for the trial period stated on the Sign-Up Page at the time of registration (the “Trial Period”). No Subscription Fee is payable for the Trial Period, and nothing in this Agreement obliges Customer to subscribe. If Customer has not subscribed in accordance with Section 4(g) by the end of the Trial Period, Adthena may allow Customer a further period to do so (the “Grace Period”) on the terms stated on the Sign-Up Page or in the Adthena Web-Application. If Customer has not subscribed by the end of the Trial Period or, where applicable, the Grace Period, this Agreement will terminate automatically at that time and Section 6(e) will apply. Customer may cancel at any time during the Trial Period or the Grace Period using the cancellation function within the Adthena Web-Application, in which case no Subscription Fee will be payable. Adthena may withdraw or modify the free trial at any time, and may end a Trial Period early on written notice (email being sufficient) if Customer breaches this Agreement.
• Subscribing; Card Payments; Automatic Renewal. Customer may subscribe at any time during the Trial Period, the Grace Period or the Retention Period by adding a valid payment card and confirming the Subscription Plan and Subscription Fee on the Checkout Page. No charge will be made to Customer’s card unless and until Customer has so subscribed. By subscribing, Customer authorises Adthena (and its payment service provider) to charge the Subscription Fee, together with any applicable Taxes, to that card: (i) where Customer subscribes during the Trial Period, on the first day after the Trial Period ends; or (ii) where Customer subscribes during the Grace Period, or reactivates its account during the Retention Period under Section 6(e), on the date of subscription; and, in each case, on the same day of each subsequent billing period (each a “Billing Date”). The Billing Start Date is the date of the first charge. Unless and until this Agreement is terminated in accordance with Section 6, Customer’s subscription will renew automatically for successive billing periods of the length stated on the Checkout Page, and Customer authorises Adthena to charge its card on each Billing Date. Customer shall keep its payment card details up to date and warrants that it is authorised to use the card. Card payments are processed by a third-party payment service provider.
• Contracting and Billing Entity. (i) Until Customer subscribes in accordance with Section 4(g), Adthena Ltd is the contracting party under this Agreement. (ii) On subscribing, the contracting party is the member of the Adthena Group that Adthena determines by reference to the company name, address and country in the billing details Customer enters on the Checkout Page, as named on the Checkout Page and in the subscription confirmation (the “Adthena Contracting Entity”). With effect from the date Customer subscribes, this Agreement continues between Customer and the Adthena Contracting Entity, and Customer consents to Adthena Ltd transferring this Agreement to that entity (where it is not Adthena Ltd). (iii) After that date, references in this Agreement to “Adthena” are to the Adthena Contracting Entity, which will issue invoices and receipts and collect payment of the Subscription Fee (including by card) in the currency stated on the Checkout Page. (iv) Customer is the legal entity whose name and address are entered on the Checkout Page. Where these differ from the details given at registration, the Checkout Page details prevail, and the person subscribing confirms that they are authorised to bind that entity. (v) Other members of the Adthena Group may provide the Services or perform Adthena’s obligations, and any such member may rely on and enforce the exclusions and limitations in this Agreement. Adthena remains responsible for their acts and omissions.

5. Intellectual Property

• Responsibility for Data. All information, data, and other materials accessible through the Services (“Data”) are the sole responsibility of the party from whom such materials originated. Customer acknowledges and agrees that: (i) Customer, and not Adthena, is entirely responsible for all Data (if any) that Customer (or any party acting on behalf of Customer) submits, uploads, emails, transmits or otherwise makes available through the Services (“Customer Data”); and (ii) Customer is solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders and Data Subjects) before submitting Customer Data (if any) through or to the Services.
• Adthena Ownership. Customer acknowledges and agrees that, as between Adthena and Customer, Adthena owns all right, title and interest (including all Intellectual Property) in and to all Adthena Materials.
• Customer Ownership. Adthena acknowledges and agrees that, as between Customer and Adthena, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data. Customer hereby grants Adthena and its service providers a royalty-free, non-exclusive licence to use, process, store, transmit and reproduce Customer Data as necessary for Adthena to provide the Services to Customer.
• Suggestions. If Customer elects to provide or make available to Adthena any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Customer hereby grants Adthena and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable licence to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions (in any form and any medium) for any purpose, without credit or compensation to Customer.
• Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Services.
• Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

6. Term, Suspension and Termination

• Term and Termination for Convenience. The term of this Agreement shall commence on the date Customer gains access to its account and shall continue in effect until terminated in accordance with this Agreement. Customer may terminate this Agreement at any time, for any reason, by using the cancellation function within the Adthena Web-Application or by giving written notice to Adthena at accounts@adthena.com. Notice given by email must be sent from the email address of a registered user of Customer’s account. Termination shall take effect at the end of the then-current billing period (as determined by the billing frequency on Customer’s Subscription Plan or applicable Order Form), provided that Customer’s notice is given at least seven (7) days before the end of that billing period. If notice is given later than that, termination shall take effect at the end of the following billing period and the Subscription Fee for that following billing period shall be payable. Customer will retain access to the Services until termination takes effect, and no further Subscription Fee will accrue after that date. Cancellation during the Trial Period or the Grace Period is governed by Section 4(f) and takes effect immediately, without any notice period. Adthena may terminate this Agreement at any time, for any reason, by giving Customer not less than thirty (30) days’ prior written notice (email being sufficient), save that Adthena may withdraw access during the Trial Period or the Grace Period at any time on written notice.
• Termination for Cause. Notwithstanding Section 6(a), either party may terminate this Agreement with immediate effect: (i) upon written notice to the other party of a material breach of this Agreement by the other party, which breach the other party does not cure within 30 days after receipt of written notice of the breach; or (ii) in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business. Notwithstanding the termination of this Agreement or any Order Form for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination.
• Events upon Termination. Upon termination for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; (ii) Customer shall immediately cease all use of the Services; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) made available under this Agreement and return or destroy all copies of such Confidential Information that are within its custody or control.
• Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 1 (Definitions); 2(b) (Restrictions); 4 (Free Trial, Fees and Taxes); 5 (Intellectual Property); 6(c) (Events upon Termination); 6(d) (Survival); 6(e) (Account Closure and Data Retention); 7 (Representations and Warranties); 8 (Indemnification); 9 (Confidential Information); 10 (Disclaimer of Warranties); 11 (Limitation of Liability); 12 (Data Protection); and 13 (Miscellaneous).
• Account Closure and Data Retention. Where this Agreement terminates or expires for any reason, including where Customer does not subscribe by the end of the Grace Period, Adthena will retain Customer’s account, configuration and Customer Data for twenty-eight (28) days after termination (the “Retention Period”), during which Customer may reactivate its account by subscribing in accordance with Section 4(g). After the Retention Period, Adthena may permanently delete them, save to the extent Adthena is required by law to retain them. Nothing in this Section 6(e) affects Customer’s licence to Results that Customer has downloaded or permanently stored outside the Services under Section 2(a), or Adthena’s obligations under Section 12.

7. Representations and Warranties

Adthena and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorised by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organisational documents of such party; (d) no action by any governmental organisation is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licences and approvals necessary to perform its obligations under this Agreement.

8. Indemnification

• Adthena Indemnification. Adthena agrees that Customer shall have no liability and Adthena shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Claim”) asserting that Customer’s use of any Adthena Materials infringes the Intellectual Property of such third party; provided, however, that Adthena shall have no obligation to indemnify Customer from any Claim to the extent it arises from: (i) use of any Adthena Materials by or on behalf of Customer in any manner that does not comply in all material respects with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of any Adthena Materials by or on behalf of Customer in combination with any hardware or software not provided or approved by Adthena; (iii) modifications to the Adthena Materials made by or on behalf of Customer that are not authorised by Adthena; or (iv) any Customer Data (Sections 8(a)(i) through 8(a)(iv), collectively, “Customer Acts”). In the event that any part of Adthena Materials becomes the subject of a Claim or Adthena reasonably determines that any part of Adthena Materials is likely to become the subject of a Claim, Adthena may, at its sole discretion: (1) procure for Customer a licence as necessary for Customer to exercise the rights granted by Adthena under this Agreement; (2) modify or replace the Adthena Materials to avoid infringement, provided, however, that the Adthena Materials as modified or replaced retain materially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund of the fees paid by Customer to Adthena for the unused portion of the then-current billing period, as applicable.
• Customer Indemnification. Customer shall indemnify, defend and hold Adthena harmless against any Claim to the extent arising from: (i) Customer Data, including any allegation that Customer Data infringes the Intellectual Property of a third party or that Customer did not have the rights, notices or consents required to submit it; or (ii) Customer’s use of the Services in breach of Section 2(b) or applicable law.
• Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any Claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defence or settlement of any Claim; and (iii) give the indemnifying party sole and complete control over the defence or settlement of any Claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

9. Confidential Information

• Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information shall include the terms and conditions of this Agreement; the source code and architectural framework of the Adthena Materials; API specifications; information relating to future releases of any Adthena Materials; and pricing information and business plans provided by either party.
• Non-Disclosure. Each party may use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party may disclose to a third-party Confidential Information of the other party. The receiving party shall protect Confidential Information of the disclosing party using the same degree of care it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than reasonable care. The foregoing obligations in this Section 9(b) shall not apply to any Confidential Information that: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement by the receiving party; (ii) was known by or in the lawful possession of the receiving party prior to receipt from the disclosing party; (iii) is or has been independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; (iv) is or has been made known or disclosed to the receiving party by a third party without a breach of any obligation of confidentiality to the disclosing party; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimise such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimise such disclosure.

10. DISCLAIMER OF WARRANTIES

ALL PRODUCTS, SERVICES AND ADTHENA MATERIALS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS, SERVICES OR ADTHENA MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS, SERVICES AND ADTHENA MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER OR END USERS’ REQUIREMENTS. THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR THE RESULTS, AND FOR CONCLUSIONS DRAWN FROM SUCH USE.

11. LIMITATION OF LIABILITY

OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, BREACH OF USE RESTRICTIONS UNDER SECTION 2(b), OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF COVER, OR DEPLETION OF GOODWILL OR SIMILAR LOSSES, OR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, PURE ECONOMIC OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES, CHARGES OR EXPENSES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS, SERVICES AND ADTHENA MATERIALS PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE PRODUCT, SERVICE AND ADTHENA MATERIALS OR ITS DELIVERY VIA THE INTERNET OR THE LOSS OR CORRUPTION OF DATA OR INFORMATION, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) SUBJECT TO CUSTOMER’S OBLIGATION TO PAY ALL FEES DUE UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWO (2) TIMES THE AMOUNT OF FEES RECEIVED BY ADTHENA FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.

12. Data Protection

• Each party will at all times comply with the data protection laws that apply to it, including, as relevant to the Adthena Contracting Entity, the laws of the United Kingdom, the European Union, the United States and Australia, and any other applicable data protection laws.
• Adthena does not process personal data on Customer’s behalf in providing the Services. Adthena acts as an independent controller of the personal data of Customer’s Authorised Users that it collects to create and manage accounts and Credentials (such as names, work email addresses and login details), and will handle that data in accordance with its privacy notice and applicable data protection law.

13. Miscellaneous

• Independent Contractors. The relationship between Adthena and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorised or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
• Business Customers Only. Customer represents and warrants that it is entering into this Agreement as a business, for purposes wholly or mainly related to its trade, business, craft or profession, and not as a consumer. The Consumer Rights Act 2015 (and equivalent legislation in other jurisdictions) shall not apply to this Agreement.
• Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing (email being sufficient) and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 13(c): To Adthena: accounts@adthena.com and, for postal notices, the address of the Adthena Contracting Entity: Adthena Ltd, 30 Churchill Place, London, E14 5RE, United Kingdom; Adthena Inc, 20 Brazos, Suite B100, Austin, TX 78701, USA; and Adthena APAC Pty Ltd, Suite 123b, Level 2, Argyle Stores, 12-20 Argyle St, The Rocks, NSW 2000, Australia. To Customer: email notice to the email address provided to access the Customer’s account.
• Publicity. Except as set out in this Section 13(d), neither party will issue any public statement, press release or announcement regarding the existence of this Agreement or the subject-matter thereof without the express written consent of the other party, which consent will not be unreasonably withheld. During the term of this Agreement, Customer expressly permits Adthena to make reasonable use of its name and logo in Adthena’s marketing materials, details of which will be provided to the Customer on request.
• Assignment. Customer may not assign this Agreement, or sublicence, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Adthena. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
• Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
• Entire Agreement; Existing Agreement Prevails. If, at the time Customer accesses or uses the Services, Customer or any of its affiliates is party to an Existing Agreement that is then in force, that Existing Agreement (together with any order forms or schedules entered into under it) shall govern Customer’s use of the Services to the exclusion of this Agreement. Subject to the preceding sentence, this Agreement (together with any Order Form executed between the parties) contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict among this Agreement, any Order Form and any policy published by Adthena, the terms and conditions of each shall take precedence in the following order: (1) the Existing Agreement (if any); (2) the Order Form (in respect of the Services provided under it); (3) this Agreement; and (4) any such policy.
• Modification of Agreement. Adthena may modify this Agreement from time to time by posting an updated version at the URL at which this Agreement is published, or any successor URL. Where any such modification is materially adverse to Customer, Adthena will give Customer not less than thirty (30) days’ prior written notice (email being sufficient) of the modification, and Customer may terminate this Agreement at any time before the modification takes effect by giving written notice to Adthena, with such termination effective on (or before) the date the modification takes effect. Modifications that are not materially adverse to Customer (including, without limitation, modifications required by law, modifications to reflect new or changed features, and clarificatory or non-substantive modifications) may take effect immediately. Customer’s continued access to and use of the Services following the effective date of any modification of this Agreement shall constitute acceptance of such modification.
• Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
• Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the law of (i) England and Wales, where Adthena is Adthena Ltd; (ii) the State of Texas, USA, where Adthena is Adthena Inc; and (iii) New South Wales, Australia, where Adthena is Adthena APAC Pty Ltd, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
• Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in (i) England and Wales, where Adthena is Adthena Ltd; (ii) Austin, Texas, where Adthena is Adthena Inc; and (iii) New South Wales, where Adthena is Adthena APAC Pty Ltd. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
• No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
• Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, pandemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
• Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.