Effective Date: February 2, 2014
Welcome to NeverPeak! Thank you for choosing our services for your online advertising needs. NeverPeak, Inc. ("NeverPeak") provides you these services from our offices. By choosing to use our services, you are agreeing to the following terms. Since these terms impose certain legal obligations on you, it is important that you read them carefully.
1. Definition of Services
"Services", as used in this agreement, includes all services that NeverPeak makes available to you, including but not limited to the NeverPeak RTB platform and the NeverPeak Ad Server.
Subject to the timely payment of all required fees, NeverPeak grants you a limited, revocable, non-exclusive, non-assignable right to use:
- NeverPeak's RTB platform solely to:
- search for, bid on and purchase ad inventory;
- create banner ads using our Ad Builder;
- store and catalogue your display ads using our Ad Vault;
- serve ads (and related links) using our built-in ad server; and,
- track the results of your various campaigns;
- NeverPeak's Ad Server solely to:
- store and catalogue your display ads;
- serve ads (and related links); and,
- track the results of your various campaigns;
all strictly subject to, and in accordance with, this agreement.
3. Limitation on Rights Granted
NeverPeak does not grant you any express or implied right or license (such as any right or license under any patents, trademarks, copyrights, or other proprietary or intellectual property rights) other than those expressly set forth in this agreement. NeverPeak (or its affiliated companies or licensors, as the case may be) retains all rights in and to the Services, including any enhancements. You have no rights in or to the Services beyond the limited right of access and use contemplated in this agreement.
4. Prohibited Usage
You are prohibited from using the Services in any manner not expressly permitted under this agreement. For example, you are not permitted to:
- access the Services using an anonymizing proxy;
- use a credit card to fund your account or pay fees without the authorization of the credit card holder;
- gain, or attempt to gain, access to the Services, or any portions of the Services, for which you are not authorized by NeverPeak;
- advertise anything illegal, engage in any illegal, deceptive or fraudulent business practice, or take any other action that could result in claims, fees, fines, penalties or other liability to NeverPeak or any of its affiliated companies, or to you;
- spread, or facilitate the spread of, any viruses, worms or other malicious computer programs that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
- infringe upon any party's copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or making available the Services, except as expressly contemplated herein;
- frame, or utilize framing techniques to enclose, any of NeverPeak's trademarks, logos or other proprietary information (such as images, text, page layouts and forms);
- use any robot, spider, other computer program, or manual process, to monitor or copy the Services, or any portion of the Services;
- scrape any ads that have been served using the Services, or use any other automated means of data extraction to access, query or otherwise collect any information related to ads that have been served using the Product;
- make any information derived from the Services available to others as a form of market research or competitive intelligence; or,
- make any information derived from the Services available to others as a form of market research or competitive intelligence; or,
- do anything that could disable, over-burden or impair NeverPeak's, or its partner's, servers, or the proper operation of the Services (such as a denial-of-service attack).
The above list is for illustrative purposes only, and is not intended to provide an exhaustive list of prohibited activities. If you have any doubt as to whether your intended use of the Services is prohibited under this agreement, you should contact NeverPeak. Only written confirmation signed by an authorized NeverPeak officer is acceptable proof that your intended activity is permitted.
5. User Account
You warrant to NeverPeak that you have the full power, authority and legal capacity to enter into this agreement. If you are entering into this agreement on behalf of a corporation or other entity, you warrant to NeverPeak that: you have the full power, authority and legal capacity to enter into this agreement on behalf of such corporation or other entity; and, this agreement constitutes a legal, valid and binding obligation of such corporation or other entity.
6. Confirmation of information
You authorize NeverPeak, or a third party representative, to:
- make any inquiries it considers necessary to validate either your identity or any of the information that you have provided; and,
- conduct credit and/or background searches on you and your corporation or other entity.
You may be required to provide further information, take steps to confirm ownership of an email address, or provide copies of identifying documents.
7. Updating information
You must ensure that all information that you provide to NeverPeak is true, accurate, complete and current. If any of the information is, or becomes, incorrect, you must immediately provide NeverPeak with correct information.
8. Ad Eligibility Requirements
All ads that you upload to the NeverPeak RTB platform must comply with:
- NeverPeak's technical requirements. These are updated from time to time, and will normally be communicated to you within the RTB platform;
- the applicable rules of the website publisher upon whose site you want your ads served. These rules define the kind of ads that the publisher deems permissible, and are updated from time to time. The latest version of such rules can be found within the RTB platform. If you are uncertain as to whether your ad meets the publisher's guidelines, you should contact a NeverPeak representative prior to uploading your ad in order to avoid interruptions, penalties, account suspension or closure;
- NeverPeak's Creative Policy and any other ad quality guidelines or policies that NeverPeak implements. NeverPeak's Creative Policy applies not only to your ads, but also the landing page to which your ad clicks-through. NeverPeak will notify you of any new ad quality guidelines or policies by either emailing you (to the email address you have provided) or by posting a notice within the RTB platform. Your continued use of the Services after such notification affirms your acceptance; and,
- the applicable laws in the United States of America, Canada, the country in which you live, and any country where your ads are served.
Due to the fluid nature of NeverPeak's business, some or all of the above requirements may change over time. You must review each on a regular basis to ensure your on-going compliance.
9. Ad Responsibility
You are solely responsible for all ads that you create, upload or traffic using the Services. NeverPeak is not liable for any loss or damage that your ads may cause to you or others. You represent to NeverPeak that you have all rights and permissions necessary to traffic your ads using the Services.
10. Ad Quality Review
NeverPeak must approve each ad that you upload before you will be permitted to begin displaying such ad. To increase the likelihood that your ad will be approved, you should ensure that your ad fits within the size parameters specified and complies with all of the applicable submission requirements.
NeverPeak may periodically review live ads to ensure on-going compliance with submission requirements, even if an ad has already been approved. NeverPeak reserves the right to remove any ad that it believes is non-compliant with its ad eligibility requirements, or for any other reason. In addition to removing an ad, NeverPeak may also suspend and/or delete your account.
12. Third Party Ad Serving
NeverPeak only permits the use of third party ad server tags in certain cases. If you wish to use such tags, you must complete an ad server tag request form and accept the NeverPeak RTB Ad Tag Usage Policy. NeverPeak reserves the right to deny ad server tag requests its sole discretion, and to revoke previously-granted permission in its sole discretion.
13. NeverPeak Ad Server
In addition to this agreement, your use of the NeverPeak Ad Server product is subject to a separate Ad Server User Agreement. The Ad Server User Agreement is in addition to, and not in substitution of, the terms of this agreement.
14. Backup All Ads
You must backup, and maintain offline copies of, all ads that you upload to the Services (including ads uploaded to the Ad Vault or the Ad Server). NeverPeak is not liable to you or to any third party for the deletion of or damage to your ads.
By bidding on ad inventory through the NeverPeak RTB platform, you are making a programmatic offer to purchase such ad inventory. If your offer is accepted, you have purchased such inventory. Purchases are non-cancellable.
Ad inventory purchases are calculated using NeverPeak's statistics and data. If these differ from any other statistics or data, NeverPeak's measurements will prevail.
16. Payment Methods
There is a $500 USD minimum deposit each time you fund your account. NeverPeak accepts credit card, wire transfer and PayPal as payment methods.
All monetary amounts related to the Services are in U.S. dollars. If you send monetary amounts other than U.S. dollars, they will be exchanged at - the rate available to NeverPeak at the time of such exchange.
You are responsible for confirming the accuracy of all information that you provide for each payment (such as contact information, payment amounts, credit card numbers and expiry dates, and wire information, as applicable).
NeverPeak uses third-party providers to process payments. As such, NeverPeak is unable to make any guarantees as to how long it will take to post funds to your account. If you use a credit card, the funding payment is usually processed and credited to your account immediately. If you send a wire transfer or use PayPal, the processing and posting of funds to your account may take a few days.
17. Account Responsibilities
You are solely responsible for ensuring the accuracy of all information you provide in accessing the Services (such as entering bid prices, bid criteria, and destination URLs).
You must diligently protect your account password and take all measures to prevent unauthorized access. You will be solely responsible for any unauthorized usage. NeverPeak recommends that you use a 'strong' password (i.e. a password with mixed upper and lower case letters, numbers and symbols, that is at least eight characters long), and change your password regularly.
If your account has been compromised or is being used in an unauthorized manner, you must immediately notify NeverPeak. You should regularly log into your account and review the details of your spending to ensure that there has not been an unauthorized transaction or other error.
You are responsible for all duties, tariffs and taxes related to your use of the Services, except for taxes on income paid or payable by NeverPeak.
You can delete your account at any time by providing NeverPeak with written notice that you wish to do so. NeverPeak will refund the unused balance in your account (if any), minus an administrative fee of 15%, within 30 days.
NeverPeak will only send refunds to the source from which payment was made. For example, if you paid by credit card, NeverPeak will only process refunds to the same credit card. You may be required to provide additional information or documentation in order for NeverPeak to confirm your identity, before any refund request will be processed.
You hereby agree to defend, indemnify and hold NeverPeak, and its affiliated companies, and each of their respective directors, officers, employees, consultants and agents harmless from any losses, damages, or costs arising from your use of the Services, or your breach of this agreement. This includes, but is not limited to, any losses, damages, or costs resulting from claims that your ads infringe upon any person's intellectual property or other rights.
21. Intellectual Property
- Ad creative license. NeverPeak needs the right to use your ad to the extent necessary to provide you with the Services, now and in the future. For example, if you upload an ad to the NeverPeak Ad Server and request that it be served to a particular website, NeverPeak requires a license from you to do so.
By using the Services, you:
- grant to NeverPeak, and its affiliates and subsidiaries and suppliers, a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, and translate such ads, solely in the manner and for the purposes for which the Services are used from time to time; and,
- grant to NeverPeak, and its affiliates and subsidiaries and suppliers, a non-exclusive, royalty-free, transferrable, irrevocable right to collect, use and modify any data related to your ads;
- grant to NeverPeak, and its affiliates and subsidiaries and suppliers, a non-exclusive, royalty-free, transferrable, irrevocable right to use your name, logo and ads on each of their respective websites and promotional materials; and,
- represent to NeverPeak that you have the lawful right to post and distribute that ad to or through the Services and, in doing so, you are not violating the terms of this agreement, the terms of any other agreement, or the rights of any person or entity.
NeverPeak property. 'NeverPeak', 'NeverPeak.com' and the NeverPeak logo are, and remain, trademarks of NeverPeak, its affiliated companies, and/or its licensors; you may not copy, imitate or use any of these without NeverPeak's prior written consent.
In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of NeverPeak, its affiliated companies, and/or its licensors; you may not copy, imitate, or use any of these without NeverPeak's prior written consent.
You acknowledge and agree that all right, title and interest in and to the aforementioned assets, including derivative creations, is the exclusive property of NeverPeak, its affiliated companies, and/or its licensors, and is protected by applicable intellectual property and other laws.
- Identification as customer. You grant NeverPeak and its affiliated companies permission to identify you as a customer. This includes using your name, trade name and trademark (if applicable), and generally describing your business in their marketing materials and website.
22. RTB Platform Disclaimer
- NO REPRESENTATIONS OR WARRANTIES FOR RTB PLATFORM. NeverPeak'S RTB PLATFORM IS PROVIDED TO YOU BY NeverPeak ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. NeverPeak MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE NeverPeak RTB PLATFORM OR ANY INFORMATION, CONTENT OR MATERIALS IT CONTAINS. NeverPeak EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING ANY AND ALL REPRESENTATIONS AND WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE NeverPeak RTB PLATFORM OR THE INFORMATION, CONTENT OR MATERIALS IT CONTAINS. NeverPeak DOES NOT REPRESENT OR WARRANT THAT THE NeverPeak RTB PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR FREE OF ERRORS, VIRUSES OR INTERRUPTIONS. NeverPeak IS NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE TO YOU IN RESPECT OF, UNAUTHORIZED ACCESS OF YOUR ACCOUNT BY THIRD PARTIES THROUGH ILLEGAL OR UNAUTHORIZED MEANS (INCLUDING ACCESS THROUGH EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS, WHETHER OR NOT SUCH ARE KNOWN TO NeverPeak AT THE TIME). YOU EXPRESSLY AGREE THAT YOUR USE OF THE NeverPeak RTB PLATFORM IS ENTIRELY AT YOUR SOLE RISK.
- Liability for NeverPeak RTB platform. If the NeverPeak RTB platform ad server functionality fails to serve your ads as required, NeverPeak will reimburse you for the amounts that you paid to NeverPeak for the ads that were not served. In no event will NeverPeak, or any of its affiliated companies, be liable to you (or any other party) for any special, direct, indirect, incidental or consequential damages of any kind whatsoever (including loss of profits, loss of business opportunities, costs of substitutes, legal fees and court costs) exceeding the amount that you paid to NeverPeak for the ads that were not served, even if such damages are reasonably foreseeable.
23. Services Disclaimer
- Results. With respect to the Services, and to the fullest extent permitted by law, NeverPeak disclaims all guarantees regarding positioning, levels, quality or timing of: (i) cost per impression; (ii) click-through rates; (iii) availability, quantity or delivery of impressions; (iv) any user actions related to your ads; (v) conversions; (vi) accuracy of data; and, (vii) the adjacency or placement of ads. Furthermore, NeverPeak makes no representations regarding revenue, the performance of your advertising campaigns, or any other anticipated benefits related to your access of the Services, or that the Services are suitable for your intended purposes.
- Availability. NeverPeak will use commercially reasonable efforts to provide the Services on an on-going basis, however, for a number of reasons, the Services may be inaccessible, unavailable or inoperable from time to time. This may be the result of: (i) periodic maintenance or repairs; (ii) equipment malfunctions; (iii) network attacks or other hostile actions; or, (iv) other reasons beyond NeverPeak's control. These circumstances, or others, may affect the availability of the Services and availability is not guaranteed.
- Limitation of liability. Under no circumstances (including negligence, gross negligence, negligent misrepresentation or fundamental breach) will NeverPeak, or its affiliates or related companies, or any of their respective directors, officers, employees, consultants or agents, be liable to you or any third party, for any direct, indirect, incidental, special or consequential damages, injury, claim, cost, expense, liability, proceeding or loss (including legal fees) (collectively, a "Loss") that result from your access of, or your inability to access the Services, or the transmission of confidential or sensitive information over the internet. These limitations apply regardless of whether the party liable, or allegedly liable, was advised, had other reason to know, or in fact knew of the possibility of such damages. You specifically acknowledge and agree that neither NeverPeak, nor its affiliates companies, nor any of their respective directors, officers, employees, consultants or agents, will be liable for any defamatory, offensive or illegal conduct of any user, including you. To the extent this limitation on liability is prohibited, the liable party's sole obligation to you for all damages is limited to $500.
- Conversion pixels. NeverPeak provides you with 'conversion pixels' to track certain statistics related to your ads (including the number of conversions, eCPA, revenue and conversion rates). You are responsible for correctly installing and using these 'conversion pixels' in the manner specified. NeverPeak makes no representations or warranties with respect to the accuracy of the information collected by such 'conversion pixels' or the data derived from such information.
- Deletion or suspension of your account. NeverPeak reserves the right to suspend or delete any account in its sole discretion. If NeverPeak suspends or deletes your account: (i) NeverPeak is not obligated to provide you with a reason for its actions; and, (ii) NeverPeak will refund the full unused balance remaining in your Account, if any, within 30 days of receiving written instructions from you as to where to refund the balance.
- Deletion of your account for breach. If you breach any of the terms of this agreement, NeverPeak may suspend or delete your account. If NeverPeak deletes your account for breach of the terms of this agreement, NeverPeak will refund the unused balance remaining in your account, if any, minus liquidated damages in an amount equal to 50% of such remaining balance, within 30 days of receiving written instructions from you as where to refund the balance. You may be required to provide additional information or documentation in order for NeverPeak to confirm your identity, before any refund request will be processed.
- Related Accounts. If NeverPeak deletes your account your right to access the Services immediately terminates. You will not be permitted to open a new account. If NeverPeak suspects that you are operating, or associated with, another account (based on its analysis of subscriber data, account content and other information), NeverPeak may suspend or delete such 'related' account, as well.
- Effect of deletion or closing. If your account is suspended or deleted, your right to access the Services immediately terminates. In such case, you must immediately destroy all copies of downloaded materials in your possession or control, and immediately cease accessing the Services.
- Confidentiality. You must keep all information and data made available to you through the Services (including publisher information, publisher website statistics and inventory prices) strictly confidential, and not use such information and data for any purpose other than your own internal use.
- Suggestions. NeverPeak does not pay for any suggestions regarding the Services, or any improvement to processes, procedures, marketing or any other matter (collectively "Suggestions"). Any Suggestions that you submit to NeverPeak become the property of NeverPeak. NeverPeak will not: compensate you for any such Suggestion; have any obligation of confidentiality with respect to any such Suggestion; or, be liable to you for any use or disclosure of any such Suggestion. You grant NeverPeak a royalty-free, irrevocable, unrestricted, non-exclusive, sub-licensable, assignable, worldwide license to use, modify, copy, sublicense, transmit, publish, create derivative works from, publicly perform and display any Suggestion for any purpose, commercial or otherwise, without compensation or liability to you or to any third party.
- No joint venture. No joint venture, partnership, employment or agency relationship exists or is created between you and NeverPeak, or any of its affiliated companies, as a result of this agreement or your use of the Services.
- Headings. The division of this agreement into sections and subsections, and the insertion of headings, is for convenience of reference only. It is not intended to affect the construction or interpretation of this agreement.
- Assignment. You may not transfer or assign any rights or obligations you have under this agreement without NeverPeak's prior written consent. NeverPeak may transfer or assign this agreement, or any right or obligation under this agreement, at any time, and is not required to provide you with notice of such assignment. Upon such assignment, the assignee becomes responsible for, and you release NeverPeak from, all of NeverPeak's assigned obligations.
- Enurement. This agreement enures to the benefit of and binds you and NeverPeak, and your/NeverPeak's respective heirs, executors, administrators, successors and permitted assigns, as applicable.
- Severability. The invalidity or unenforceability of any provision of this agreement does not affect the validity or enforceability of any other provisions of this agreement, and any such invalid or unenforceable provision is deemed to be severable.
- Force majeure. In addition to applicable disclaimers stated above, NeverPeak's performance under this agreement is excused in the event of interruption and/or delay due to, or resulting from, causes beyond its reasonable control, including acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, flood, earthquake, explosion, embargo, acts of terrorism, power failure, equipment failure, industrial or labor disputes or controversies, acts of any third party data provider(s) or other third party information provider(s), third party software, or communication method interruptions.
- Governmental or other subpoenas. NeverPeak may be subpoenaed by governmental entities or others to provide information relative to your account. NeverPeak has no obligation to inform you of any subpoena or response to any subpoena, and you agree that NeverPeak will have no liability to you for disclosing information in response to a subpoena.
- Notices. NeverPeak will provide you with any required notice by: posting it in the Services; emailing it to the email address listed in your account; or, mailing it to the street address listed in your account. Such notice is deemed to have been received by you immediately upon it being posting to the website or sent to you by email (unless we receive notice that the email was not delivered). If notice is sent by mail, it is deemed received by you three business days after it is sent. You will provide NeverPeak with any required notice by registered mail to: 222 W. Hubbard St., Suite 400, Chicago, IL, 60654, Attn: Legal Department.
- Changes to Agreement. NeverPeak has the rights to modify, add or remove any terms or conditions of this Agreement ("Changes"). You will be notified of any Changes through a posting on the Website, a notification in the Services or via email. All Changes are effective immediately upon posting ("New Effective Date"). The most recent version of this Agreement can always be found at http://www.NeverPeak.com/legal/terms_of_use/. You agree to review this Agreement from time to time. Any subsequent use by you of the Services following the New Effective Date constitutes your acceptance of all such Changes. If you do not agree to any or all of the Changes, you must stop using the Services immediately and notify NeverPeak via email at: legal@NeverPeak.com.
- Entire Agreement
The agreement, as amended from time to time, constitutes the entire agreement between you and NeverPeak for the Services and supersedes all prior agreements, written or oral, with respect to the same subject matter. You cannot change the terms of this agreement, nor can any NeverPeak sales representative.
- Jurisdiction. The Services are controlled and operated by NeverPeak from its offices in Chicago, Illinois. You and NeverPeak both benefit from establishing a predictable legal environment in regard to the Services and, as such, you and NeverPeak agree that: (i) this agreement is created and performed in Chicago, Illinois; (ii) the Services are provided to you from Chicago, Illinois; (iii) all disputes, claims or other matters arising from, or relating to, this agreement or your use of the Services are governed by the laws of the State of Illinois and the federal laws applicable therein; and, (iv) all disputes, claims or other matters arising from, or relating to, this agreement or your use of the Services will be heard exclusively by the courts of the State of Illinois, sitting in Chicago, Illinois.
- WAIVER OF RIGHT TO JURY TRIAL. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT, ANY OTHER AGREEMENT RELATED HERETO OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES, AND THEREFORE, THE PARTIES AGREE THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.