Linkfire provides a marketing intelligence software service which allows the Customer to create smart links. The behavior of each link is dependent on live online user activity and allow the Customer to create and segment user pools to be targeted in various marketing activities.
1.1. Linkfire shall provide the Customer with the Service in accordance with the terms and conditions of this Agreement.
2.1. “Affiliate” is an entity that controls, is controlled by or shares common control with Linkfire or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
2.2. “Commercial Schedule” or “Commercial Terms” refers to the schedule presented upon sign-up and in “Order confirmation” and incorporated herein by this reference, setting forth the commercial terms of the Agreement and as may be updated from time to time by Linkfire and Customer.
2.3. “Confidential Information” shall have the meaning set forth in Section 8.2.
2.4. "Customer Data" means all electronic data or information submitted to the Linkfire Service by users who click on a Linkfire link, the Customer, a third party on behalf of Customer, or as directed by Customer.
2.5. “Discloser” means the party disclosing Confidential Information.
2.6. “Fees” means the monthly or annual subscription fees for the Service as set forth in the Commercial Schedule.
2.7. “Infringement Claim” shall have the meaning set forth in Section 10.1.
2.8. “Recipient” means the party receiving Confidential Information.
2.9. “Services” means the provision, including under a Trial Subscription, of one or more of the following: (i) Linkfire application and Linkfire API; (ii) user data and statistics; and (iii) SLA.
2.10. “Service Items” means all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Services or made available to Customer as a result of the Services.
2.11. “SLA” means the Service Level Agreement, if any, as described in the Commercial Schedule.
2.12. “Support” means the Customer support described at https://linkfire.com/faq
2.14. “Territory” means the countries set forth in the Commercial Schedule.
2.15. “Trial Subscription” means the provision of Services to Customer on a free trial basis for a limited time. The specific duration of the Trial Subscription will be specified in the applicable offer at sign-up. Trial Subscriptions are limited to potential new Customers only, unless otherwise specified. A Customer’s status as a new subscriber to the Services will be determined by Linkfire in its sole discretion. The terms of this Agreement apply to any Trial Subscription, unless otherwise specified.
3.1. Subject to Customer’s payment of the Fees, Linkfire will provide Customer with access to the Services as set forth in this Agreement and applicable Commercial Schedule.
3.2. This Agreement contemplates the execution by the parties of one or more Commercial Schedules. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any additional Commercial Schedules.
4. Linkfire Services
4.2. Linkfire will (i) provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide Support to Customer for the Services, which may be changed by Linkfire upon prior notice to customer. If an SLA is provided for the Linkfire Services, the terms of such SLA will be attached to the Commercial Schedule.
4.3. Customer shall:
4.3.1. prevent unauthorized access to, or use of, the Services, and notify Linkfire promptly of any such unauthorized access or use, comply with all applicable laws in using the Services, and (iii) pay the Fees.
4.3.2. Customer will not (i) modify, copy or create derivative works based on the Services; (ii) disassemble, reverse engineer, or decompile the Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Linkfire Services; (iv) interfere with or disrupt the integrity or performance of the Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Services; (vii) send or store viruses or malicious code via the Services; (viii) attempt to gain unauthorized access to the Services or its related software, systems, platforms or networks; (ix) use any components provided with the Services separately from the Services; or (x) distribute, rent, lease, sublicense or provide the Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
5. Fees and Payment
5.1. The Fees payable for the Services are set forth in the applicable Commercial Schedule. The Fees will be invoiced in accordance with the relevant Commercial Schedule and are due in accordance with the payment terms set forth in such applicable Commercial Schedule.
5.2. Customer will pay or reimburse Linkfire or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on Linkfire’s net income or arising from the employment relationship between Linkfire and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
5.3. In addition to its other rights and remedies, Linkfire reserves the right, without liability to the Customer, to suspend any and all access to the Services if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
6. Term and Termination
6.1. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 6.3 or 6.4 below.
6.2. Each Order will begin on the commencement date specified in the relevant Commercial Schedule and continue for the subscription term specified therein.
6.3. Upon written notice no later than 2 working days prior to payment for the upcoming period, either party may terminate this Agreement for its convenience; however, such termination will have no effect on Commercial Schedules executed by the parties prior to its effective date, including but not limited to payment obligations contained therein, and such Commercial Schedules will remain in full force and effect under the terms of this Agreement for the term specified therein. Commercial Schedules may not be terminated for convenience unless otherwise specified therein.
6.4. Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.5. In addition to its other rights and remedies, Linkfire reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement or any relevant Commercial Schedule until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 30 days from receipt of written notice hereof, then Linkfire may immediately terminate the Agreement and/or the affected Commercial Schedule.
6.6. Upon termination pursuant to 6.3 and 6.4 above, all rights and licenses granted herein will terminate and Customer will make no further use of the Services. No termination will relieve the Customer of the obligation to pay any Fees accrued or payable to Linkfire. Data will still be available in a read-only mode, where Customer can access data, but not edit any existing links or add new. After a one-year period, Linkfire shall have no obligation to maintain or provide any Customer Data and may thereafter delete Customer Data without further notice. Linkfire can provide reader-access to links created after termination, and links will continue to remain active as set up on creation or edit date. Upon termination, Linkfire reserves the right to de-activate links that have not received at least 50 clicks within a consecutive period of 90 days, without further notice. Customers will not be able to create new links nor edit already created links after termination.
7. Limited Warranty
7.1. Linkfire warrants to Customer that the Services (i) will perform in substantial accordance with the applicable SLA, if any, and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and Linkfire’s sole obligation for breach of the warranty in this Section 6 will be Linkfire’s use of commercially reasonable efforts to have the Services perform in substantial accordance with the SLA, or replace the non-conforming portion of the Service within a reasonable period of time, or if Linkfire cannot have the Service perform in substantial accordance with the SLA or replace the Services within such time period, then Linkfire will refund the amount paid by Customer for the Services, pro-rated from the date of the notice of the claim. Customer’s rights and Linkfire’s obligations in this Section 6 are conditioned upon Customer’s providing Linkfire with written notice of the claim, a complete description of the alleged defects and a specific reference to the part or parts of the Services [and/or SLA, as applicable, to which such alleged defects are contrary. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LINKFIRE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. LINKFIRE, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
8. Proprietary Rights and Confidentiality
8.1. Linkfire, its Affiliates or licensors retain all right, title and interest to the Services and all related intellectual property and proprietary rights. The Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Linkfire owns all right, title and interest in Service Items and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Linkfire reserves any rights not expressly granted to Customer.
8.2. “Confidential Information” means all proprietary or confidential information that is disclosed to the Recipient by Discloser, and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to Linkfire, and its licensors, the Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient.
8.3. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have a need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
8.4. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing, Customer agrees that Linkfire may refer to Customer as a customer of Linkfire, both internally and in externally published media.
8.5. As between Linkfire and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. Customer is responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations and its agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data. Customer acknowledges and consents that Services provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. Customer is solely responsible for the transmission of Customer Data to Linkfire and to the Services. Customer is solely responsible for the encryption of any Customer Data. Customer grants Linkfire a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public, publish, translate, modify, create derivative works from, and distribute any of Customer’s anonymized Customer Data and to use or incorporate into any Linkfire products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created.
9. Disclaimers and Limits on Liability
9.1. Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LINKFIRE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. LINKFIRE, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
9.2. DISCLAIMER OF DAMAGES. EXCEPT FOR A BREACH OF SECTION 4.3 AND EACH PARTY’S RESPONSIBILITIES IN SECTION8, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
9.3. LIMITS ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 8 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 8, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE COMMERCIAL SCHEDULES GIVING RISE TO LIABILITY.
10. Infringement Claims
10.1. Indemnification by Linkfire. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then Linkfire will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If Linkfire believes the Services may violate a right, then Linkfire will, at its expense: (a) modify the Services, or (b) procure the right to continue using the Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
10.2. Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against Linkfire asserting that the Customer Data or Customer’s use of the Service in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify Linkfire for any damages finally awarded against Linkfire based on the Claim.
10.3. Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
10.4. THIS SECTION CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
11. Governing Law and Dispute Resolution
11.1. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation. Any dispute arising out of or in connection with our relationship, including any disputes regarding the existence, validity or termination of this Agreement, shall be governed by Danish law. The dispute shall be subject to simplified arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of the simplified arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced.
11.2. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. Data Protection
13.1. Customer agrees that Linkfire or its agent may monitor the Services to ensure Customer’s compliance with the terms of this Agreement.
14. Miscellaneous Terms
14.1. Linkfire is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond Linkfire's reasonable control.
14.2. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.3. Customer will receive system notifications from Linkfire and its licensors, if applicable (i.e. planned downtime notices, etc).
14.4. This Agreement, including any Exhibits and Commercial Schedules constitutes the entire agreement between Customer and Linkfire and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services.
14.5. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement.
14.6. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with Linkfire’s licensors and Linkfire’s licensors have no liability to Customer.
14.7. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both Linkfire and Customer.
14.8. This Agreement and the rights hereunder are not transferable or assignable by Customer (and any attempted assignment will be void) without the prior written consent of Linkfire, except to a person or entity who acquires all or substantially all of the assets or business of Customer, whether by sale, merger or otherwise. Linkfire may assign or transfer this Agreement without Customer’s consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9. Any additional or conflicting terms of any Customer purchase order are rejected by Linkfire and do not apply.
14.10. Any additional documents presented to a Linkfire representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.