TPS ENGAGE TERMS AND CONDITIONS
These terms and conditions (“Terms”) are between TPS Engage Inc, a British Virgin Islands company, The Pole, Inc. A Delaware Corporation and SC FREEDOM MASK SRL a Romanian Company (“TPS,” “us,” `or “we”) and the person or entity (“you” or “Customer”) using TPS’s applications, websites, software, and services (the “Platform”). By using the Platform, you agree to be bound by these Terms. If you do not agree to the Terms, do not use the Platform. These Terms are subject to change at any time; we therefore encourage you to periodically review the Terms to ensure that you are aware of any changes. On occasion, TPS will notify all users of changes in the Terms and Conditions. By continuing to use the Platform after the Terms are updated, you agree to be bound by the most current version of the Terms.
1.1 Eligibility. You must be at least 18 years old to use the Platform and assume the obligations set forth in these Terms.
1.2 Registration as a Condition to Use. Only registered users (each, a “User”) may use the Platform. By using the Platform, you warrant that you are a User. As a User, you shall not allow third parties to access the Platform using your account, and you are personally responsible for any use of the Platform through your account, whether by you or a third party.
1.3 Acting on Behalf of Third Parties. If you are using the Platform on behalf of a corporation or entity that you represent, you warrant that such person has agreed to be bound by these Terms. You agree that if you fail to properly obtain such person’s consent to be bound by these Terms, you will bear all responsibilities and liabilities of such person.
2. THE PLATFORM
2.1 Description. The Platform is an advertising platform through which you authorize us to use automated tools to format and display multimedia content, including text, data, photographs, graphics, video or other information (“Content”) on digital signs and billboards (“Signs”). We may make certain tools available to assist you in using the Platform. We and/or our affiliates may participate in or make use of the Platform.
2.2 Target and Budget. The Platform allows you to establish budgetary settings (“Budgets”) and specify where, when, and under what conditions your Content may be displayed (“Targets”). You are solely responsible for your Targets and Budgets.
2.3 Alternative Channels. You agree that TPS may display your Content in alternative channels, such as websites or applications allowing people to see when and where your Content was displayed.
2.4 Medium Ownership. TPS does not own or operate the Signs available in the Platform. All Signs available in the Platform are owned or operated by Third Party Entities. TPS only facilitates distribution of Content on unsold inventory of all Signs Connected in the Platform.
2.5 TPS does not use exclusively audience data collected by TPS or its affiliates. In any situation, the User will be notified visually regarding who is the entity providing the audience data and whether the data is collected in real time or it is statistical data. TPS is not responsible for the accuracy of the data provided and data provided should be regarded with a margin of error. TPS shall communicate the accuracy levels for the Units it monitors two times a year.
2.6 Dynamic content exchange. Any triggered content exchange for dynamic campaigns shall be justified in the Campaign Details section provided for each scheduled campaign.
2.7 Performance and ROI. TPS is not responsible for any performance/underperformance and ROI level. The User aknowledges that any such indicators are solely their responsability and at their control. TPS has no ability to influence any such indicators. This falls entirely in the responsibility of the ad creator – as he or she controls the creative and the planning schedule.
2.8 Proof of play. In some cases, TPS will provide a visual Proof of Play for scheduled campaign consisting of an image or video with the ad display on a Sign. The User understands that such Proof of Play is not implied for all units connected to the Platform and in most cases, the Proof of Play data is provided by TPS Affiliates or Supplyers in the for of automated airing numbers. In the situation visual Proof of Play is provided, TPS shall clearly mark and display this as a separate and extra feature.
3. INTELLECTUAL PROPERTY
3.1 License. We hereby grant you a worldwide, non-exclusive, revocable, limited, personal, non-sublicenseable and non-transferable license to use the Platform in accordance with these Terms; provided, however, that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in such Platform.
3.2 Publicity. You (a) authorize us to identify you by name and/or logo as a customer of the Platform in any format and for marketing purposes or any other purpose that we deem useful, and (b) grant us a limited license to use and display your trademarks and logos for such purpose. You may opt out of this section by submitting a written request to us using the contact information provided in Section 6.9 of these Terms.
4. USE OF PLATFORM
4.1 Personal Account. As a User, you will be required to create an account, which will be associated with a username and a password. Your TPS account is for your exclusive personal use. You may not authorize others to use your account, nor may you assign or transfer your account to any other person or entity.
4.1.1 Your account is associated with a username, a password, a phone number and an email and you are responsible for protecting all. If you believe the security of your username, your password, phone number or email and/or your account has been compromised, you must contact us immediately using the contact information provided in Section 6.9 of these Terms.
4.1.2 When creating an account, you may be asked to provide information such as contact information and billing information. You warrant that all such information you provide is complete, accurate, and current and that we may rely on such information. TPS will check, on occasion, with registered authorities, the accuracy of this information.
4.2 Content. You retain all rights, title and interest in and to your Content. By submitting Content for display on the Platform, you agree to the following:
4.2.1 You are solely responsible for and assume all liability for your Content and bear all risks and liability associated with using the Platform to display the Content.
4.2.2 You warrant that the Content does not contain misleading, false, illegal, or inappropriate information or otherwise violate any local, state or country laws as well as morality rules and regulations.
4.2.3 You warrant that you own or otherwise control all rights (including but not limited to copyright and trademark rights) necessary to use the Content and that our display and use of such Content will not infringe or violate the rights of any third party.
4.3 Payment and Collections. You will only be charged for the presentation of your Content on a Sign. In addition to our fees, you are responsible for all taxes and other government charges associated with the display of your Content. Late payments will accrue interest at the lesser of one and one-half percent (1½%) per month or the maximum rate permitted by law. You agree to pay reasonable fees, including attorney fees, that we incur collecting late payments. Payment of fees due hereunder shall not be subject to set off, counterclaim, adjustment, reduction or otherwise by virtue of any actual or potential claim against TPS.
4.4 External Destinations. You are solely responsible for all external destinations to which your Content may direct viewers (each, a “Destination”), including but not limited to physical locations, websites, and phone numbers. You are solely responsible for any products or services offered at such Destinations. By posting Content that directs viewers to a Destination, TPS does not endorse or become affiliated with such Destination.
4.5 Other Policies and Guidelines. Your use of the Platform is subject to the Design Guidelines and any other policies and guidelines that we may put in place. We reserve the right to augment or modify such policies and guidelines at any time.
4.6 Removal of Content. We may remove Content at any time if we, in our sole discretion, determine that such content violates the Design Guidelines, is illegal or is otherwise offensive to the moral standards of the community. We believe that our medium is an outlet for free speech; however we balance that role with a strong commitment to adhere to community standards and to ensure that the messages placed on our inventory are not offensive towards any business, group or individual. We carefully evaluate all requests for advertising placement on a case-by-case basis and make the best decision for our clients, our company and the communities in which we operate.
DISPLAYED CONTENT; OUTAGES AND INTERRUPTIONS
4.7 No Guarantee of Display. We guarantee that your content will be present on selected signs based on the minimum plays per hour booked in the Platform and approved by the moderation team, unless there is an outage on any or all of the selected Signs. If your Content is not presented on a Sign, you will not be charged or will be reimbursed.
4.8 Outages. Signs are subject to various outages which may restrict our ability to display, edit, or remove Content. If such outages occur, you will only be billed for presentations of your Content on a Sign, consistent with your Targets and Budgets. You acknowledge that during an outage, the ability to edit, delete, or otherwise change any Content that is already in a Sign’s schedule may be delayed for an undefined period of time, and you agree that the unmodified Content may continue to be displayed on the Sign until the outage is resolved.
4.9 Partial Display Failures. Signs are subject to various software, hardware, and environmental conditions which may cause Content to be only partially displayed or partially visible on the Sign (a “Partial Display Failure”). At our sole discretion, we may determine that a Partial Display Failure has reduced the value of the presentation of your Content and may, at our sole discretion, reduce the fees associated with such presentation or waive them entirely.
5. WARRANTIES, DISCLAIMERS, AND LIABILITY
5.1 General Disclaimers. We have no fiduciary duty to you. You alone are responsible for your use of the Platform and the consequences thereof.
TPS PROVIDES THE PLATFORM “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, TPS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WHETHER ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, TPS AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS CAN OR WILL BE CORRECTED; (C) ANY INFORMATION OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE PLATFORM WILL MEET YOUR REQUIREMENTS. YOU USE THE PLATFORM SOLELY AT YOUR OWN RISK.
5.2 Indemnification. You agree to indemnify, defend and hold harmless TPS, its subsidiary and parent companies, and each of their officers, directors, employees, agents and related third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any third-party claim related to (a) your use of or inability to use the Platform; (b) your Content; (c) your violation of these Terms or your violation of any rights of a third party; (d) your violation of any applicable laws, rules or regulations; or (e) the unauthorized or unlawful use of the Platform by any person using your account. TPS reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with TPS in asserting any available defenses.
5.3 Limitation of Liability. IN NO EVENT WHATSOEVER SHALL ANY OF TPS, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD-PARTY CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY THE “TPS PARTIES”) BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF PLATFORM OR ANY INABILITY TO USE THE PLATFORM (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE PLATFORM, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY BUSINESS INTERRUPTION OR LOSS OF REVENUE OR PROFIT OR ANY OTHER CONSEQUENTIAL ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE TPS PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.
If, notwithstanding the other provisions of these Terms, the TPS Parties should have any liability to you or any third party for any loss, harm or damage, you and TPS agree that such liability shall under no circumstances exceed $150.00. The terms and conditions of these Terms that limit liability reflect an agreed allocation of risk between you and TPS. Some jurisdictions may not allow the exclusion or limitation of certain damages, or limits on the duration or voiding of implied warranties or conditions; as it relates to consumer purchasers and in such jurisdictions, the limits and exclusions herein may not apply to the extent provided by applicable law.
TPS ENGAGE TERMS AND CONDITIONS
6.1 Term and Termination. These Terms will become effective upon your acceptance thereof, as indicated by your use of the Platform and will remain in effect in perpetuity unless terminated hereunder. You or we may terminate your account at any time, for any reason or no reason, without explanation, by sending written notice to the other party. You agree that if we terminate your access to the Platform, you will immediately stop using the Platform.
6.2 Notice. We may give any notice required or permitted to be given in writing hereunder via email. Such notice will be effective immediately.
6.3 Entire Agreement; Amendment. These Terms and any documents incorporated herein constitute the entire agreement between you and us with respect to the subject matter hereof. We reserve the right to amend the provisions of these Terms at any time.
6.4 Governing Law; Venue. These Terms will be governed and construed under the laws of the State of New York, without regard to its conflict of laws provisions or the United Nations Convention on the International Sale of Goods. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in New York City, NY. All disputes and/or legal proceedings related to these Terms will be maintained in courts located in New York City, NY.
6.5 Waiver/Severability. Our waiver or failure to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of these Terms is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms shall remain enforceable.
6.6 Assignment. We may assign these Terms, in whole or in part, in our sole discretion. You may not assign your rights under these Terms without our prior written permission. Any attempt to assign your rights under these Terms without our permission shall be void.
6.7 Force Majeure. We shall not be liable for any failure or unavailability of the Platform or our failure to provide the Platform as a result of strikes, lockouts, calamities, acts of God, unavailability of suppliers, the loss or destruction of data, the deletion or corruption of storage media, power failures, natural phenomena, riots, acts of vandalism, acts or omissions of civil or military authority, war, terrorism or any other event beyond our control.
6.8 Headings. The headings of articles and sections contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
6.9 Electronic Documents. This electronic document, and all other electronic documents referred to or incorporated herein, will be: (a) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual, and other legal requirements for a writing; and (b) legally enforceable as a signed agreement. A printed version of these Terms and any notice given in electronic form shall be admissible in judicial proceedings or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
6.10 Questions and Complaints. Please direct all questions, complaints, or claims with respect to the Platform to the following:
Last Updated: February 03, 2019