Terms of Service
Last Updated: September 13, 2026
APARAGON TERMS OF SERVICE
These Terms of Service (“Terms”) describe the terms and conditions under which you may access and use the Aparagon Marketing Platform (“AMP”), referred to throughout these Terms as the “Platform.” These Terms are between Aparagon, Inc. (“Aparagon”) and each advertiser (“Advertiser”) that registers for an account (an “Account”) on the Platform, and between Aparagon and each agency (“Agency”) that registers for a profile (a “Profile”) on the Platform (each of Advertiser and Agency, a “Party,” and together with Aparagon, the “Parties”).
No other terms or conditions will govern the relationship between the Parties unless agreed to in writing or electronically through the Platform. Most capitalized terms used in these Terms are defined in Section 14; additional terms are defined elsewhere in these Terms where they first appear.
Subject to compliance with these Terms, Aparagon grants Advertiser and Agency a non-exclusive, non-transferable license to access and use the Platform during the applicable Term solely to perform the Services; provided, however, that no license shall be granted to, view, access, or use the Platform or Aparagon’s Services to: (i) any prospective or direct competitor of Aparagon, or (ii) any other Person whose reason or intent for accessing the Platform is for purposes other than using the Platform and the Services for or on behalf of an Advertiser.
1. Platform Account Types, Administration, and Integrations
1.1 Account Types and Purpose. An Account is required to use the Platform. There is no charge to create or maintain an Account. There are three types of Accounts: Direct, Managed, and Companion. The type of Account determines which Party controls the Account and is responsible for its fees, as described below in these Terms. It is through a Direct, Managed, or Companion Account that users purchase digital ads and use the Aparagon Insights Engine to measure performance. Aparagon acts as the seller of digital ads purchased through the Platform as further described in Section 5. The three types of Accounts are described more fully as follows:
(a) Direct Account. A Direct Account is established directly by Advertiser for the purpose of marketing its own brand. The Advertiser is always responsible for paying all Aparagon invoices for ads ordered and Services provided through a Direct Account.
(b) Managed Account. A Managed Account is established by an Agency on behalf of an Advertiser that is the agency’s client. The establishing Agency automatically becomes the Billing Agency upon creation of the Managed Account, and that Billing Agency is responsible for paying all invoices associated with that Managed Account. As more fully described in Section 3.1 below, the identity of the Billing Agency may be changed with Aparagon’s approval.
(c) Companion Account. As part of the Agency setup process, Aparagon will automatically create a Companion Account for each Agency, and the Agency will be treated as an Advertiser under these Terms with respect to its Companion Account. Control of, and billing responsibility for, a Companion Account belongs permanently and exclusively to the Agency Profile for which it was created. Agency may use its Companion Account as a demo environment, and the Companion Account has all of the functionality of a standard Account; however, only digital ads that market Agency’s own services may be purchased through it.
For all three types of Accounts, one or more Agencies can be connected as a Connected Agency under Section 2.3(b), but such a connection does not affect control of, or billing responsibility for, an Account.
1.2 Account Permissions. Administrative Permissions over an Account are held, in the first instance, by the Party responsible for the Account under its Account Type: Advertiser, for a Direct Account; the Billing Agency, for a Managed Account; or Agency, for its own Companion Account. That Party may grant one or more Authorized Users certain Administrative Permissions on each Account, which may be updated at any time through the Platform. Only one Account is permitted for each Advertiser (that is, an Advertiser may not create a Direct Account and an agency create a Managed Account for that same Advertiser). However, an Account’s type, and the Party responsible for it, may change as described in Sections 3.1, 3.3, and 8.5.
1.3 Client Data Integration. To activate the Aparagon Insights Engine, Aparagon must receive Client Data from the Advertiser through one of three levels of Integrations, one of which is mandatory and the other two are optional:
(a) Simple Integration (Mandatory). Every Direct Account and Managed Account must complete a Simple Integration. To complete Simple Integration, at least one Aparagon-provided Amazon Ad tag must be published on the Advertiser’s website. Aparagon will validate the tag placement before granting access to an Account. The Amazon Ad tag captures event data on the Advertiser’s website, which Amazon processes within the Amazon Marketing Cloud (“AMC”). The Aparagon Insights Engine receives only aggregated, privacy-safe outputs from that processing, not the underlying event data, as further described in Aparagon’s policies referenced in Section 10.3 below. Amazon Ad tags are generated and provided to Aparagon by Amazon and are governed by Amazon’s terms and policies. Aparagon is not responsible for errors, omissions, or other problems caused by Amazon or its tags, and is not liable for Amazon’s actions that may impact Aparagon’s ability to deliver the Services.
(b) Advanced Integration (Optional). Advanced Integration, if an Advertiser requests it, provides a broader level of integration and is unique to each Advertiser. Advanced Integration allows an Advertiser to introduce Client Data by manually uploading files within the Platform or by establishing a secure, automated data feed with the Aparagon Insights Engine. Under either method, Aparagon processes that Client Data for use within AMC, as further described in Aparagon’s policies referenced in Section 10.3. Advertiser must request Advanced Integration, which Aparagon may deny in its sole and absolute discretion. If approved, Aparagon will guide Advertiser in establishing the applicable method of integration. Custom integration requests may incur additional cost from Aparagon.
(c) ACE Integration (Optional). Aparagon Conversion Events (“ACE”) is an optional integration through which Aparagon provides a script and supporting backend infrastructure that is deployed on an Advertiser’s website. ACE captures conversion events occurring on the website (such as page views, form submissions, and purchases) and transmits them, together with any available hashed identity signal, to Amazon Ads. Amazon Ads then makes this information available within AMC and Amazon’s demand-side platform (“DSP”) for campaign optimization, targeting, and attribution. There is no additional charge to enable ACE for an Account; use of ACE is included within the Fees described in Section 7.
1.4 Integration Authorization; Compliance with Laws.
(a) Whenever the Advertiser places an Amazon Ad tag on its website or deploys ACE, and whenever an Agency places an Amazon Ad tag on an Advertiser website or deploys ACE on a Managed Account, the Party that places the tag on an Advertiser website or deploys ACE represents and warrants that it has all rights, authority, and permission to take these actions on the Advertiser’s website, agrees that it shall be solely responsible for any consequences arising from placing an Amazon Ad tag on Advertiser’s website or deploying ACE, and acknowledges that it is responsible for assuring that the placement of the Amazon Ad tag or deployment of ACE complies with any Laws applicable to the website. Aparagon only provides the ad tag and ACE script; it is not responsible or liable for a tag’s placement or ACE’s deployment or any consequences to the Advertiser or Agency that may result.
(b) Consent Responsibility. Advertiser and Agency are solely responsible for obtaining any consent required under applicable Law before capturing or transmitting Client Data through an Amazon Ad tag or ACE, and are solely responsible for the accuracy of any consent signal or configuration provided to Aparagon for that purpose. Aparagon may rely on the consent signal or configuration Advertiser or Agency provides without independent verification.
(c) No Guarantee of Amazon-Side Outcomes. Aparagon does not guarantee that any event transmitted through an Amazon Ad tag or ACE will result in a particular attribution outcome, will become visible within AMC, or will render an Account eligible for any Amazon DSP tactic or optimization feature, each of which depends on Amazon’s own systems, policies, and processing outside Aparagon’s control. Aparagon is not liable for Amazon’s actions, delays, or omissions that may impact an Amazon Ad tag or ACE’s operation, as further detailed in Section 5.4.
1.5 ACE Integration Terms.
(a) Authorization to Transmit. By enabling ACE for an Account, either the Advertiser (in the case of a Direct Account) or the Agency that enables ACE on an Advertiser’s behalf (in the case of a Managed Account) authorizes Aparagon to capture, process, hash, and transmit to Amazon Ads the event data and identity signal described in Section 1.3(c), which constitutes Client Data and is subject to Section 10. Advertiser acknowledges that, once transmitted to Amazon, Client Data resides within Amazon’s own systems, and that Aparagon cannot export, recover, or correct that data. Instead, Aparagon is only capable of deleting Client Data within Advertiser’s AMC instance, as described in Section 11.3; provided, however, that Aparagon’s ability to delete Client Data is controlled and governed by Amazon, which may change its permissions at any time.
(b) Prohibited Content. Advertiser and Agency shall not use ACE to collect, name, describe, or transmit any sensitive personal information, including information related to an individual’s financial status or health or medical condition. Aparagon may reject, disable, or suspend, in its sole and absolute discretion and without incurring any liability to Advertiser or Agency, any event name, conversion-type mapping, or associated value that Aparagon reasonably believes would violate this Section 1.5(b).
2. Agency Profiles; Roles; and Agency Representation of Authority
2.1 Profile Purpose. Aparagon recognizes the significant role that Agencies serve for Advertisers relating to strategy and campaign management. An Agency Profile is an organizational tool that provides each Agency a convenient way for the Agency’s Authorized Users to create a Managed Account on the Platform for each of the Agency’s Advertiser clients. There is no charge to create or maintain a Profile.
2.2 Profile Administration. Agency may grant Administrative Permissions over its Profile to one or more Authorized Users. Agency may assign, reassign, or update Administrative Permissions on its Profile at any time through the Platform.
2.3 Profile Uses.
(a) To create a Managed Account. Once an Agency has a Profile, it may create a Managed Account on behalf of its Advertiser clients, and its Profile will identify all Managed Accounts that the Agency has created and manages. The Agency that creates a Managed Account is automatically designated by Aparagon as the Billing Agency that will receive and be responsible for paying all Aparagon invoices, regardless of whether the Advertiser reimburses or pays the Billing Agency, as more fully described in Section 3.1, below. Only the Billing Agency may incur any charges or fees on a Managed Account. A Connected Agency (described below) cannot.
(b) Becoming a “Connected Agency.” An Agency may also become a “Connected Agency” when it connects its Profile to a Direct Account that an Advertiser has already established, to a Managed Account that another Agency has already established, or to another Agency’s Companion Account. More than one Agency may be connected to the same Direct, Managed, or Companion Account at the same time. In the case of a Managed Account, however, a Connected Agency is never the Billing Agency unless it is approved as the replacement Billing Agency pursuant to the process described in Section 3.1. Each Agency that is authorized on a Managed Account, whether the Billing Agency or a Connected Agency, has authority to grant any individual Authorized User access to that Managed Account, but only the Billing Agency’s Authorized Users will possess authority to submit campaign orders through that Account.
2.4 User Permissions. An Agency may add, remove, and manage Authorized Users associated with its Profile. For a Managed Account for which an Agency is the Billing Agency, that Billing Agency has full access to, and administrative control over the Account. For a Direct Account, a Managed Account, or another Agency’s Companion Account to which an Agency is connected only as a Connected Agency, the Agency has the access granted to it under Section 2.3(b), without administrative control over the Account.
2.5 Authority. By registering a Profile, Agency acknowledges and agrees that it is responsible for all activities on the Platform conducted under that Agency’s Profile, including creating and managing Accounts on behalf of its clients. Agency represents and warrants that, before creating an Account or establishing a connection on an Advertiser’s behalf under Section 2.3 or 2.4, it has obtained that Advertiser’s actual authorization to do so, including Agency’s assumption of responsibility for the Account as described in Section 4.3. Absent such authorization, Agency shall not create an Account or establish a connection on that Advertiser’s behalf. Agency is solely responsible for assuring that it possesses the requisite authority at all times that it acts on behalf of an Advertiser. If Agency’s authority to act on behalf of a given Advertiser ends for any reason, Agency must promptly disconnect that Advertiser’s Account from its Profile and notify Aparagon.
2.6 One Advertiser Per Account. Agency may have access to more than one Account on the Platform, but shall not use any Account, including its Companion Account, to place advertisements for any client or other person or entity other than the Advertiser for that Account.
2.7 Aparagon Agency Network. A Profile activates Agency’s free membership in the Aparagon Agency Network, a publicly available list of Agencies registered on the Platform. Agency may advertise and promote its membership and is granted a license to use the Aparagon trademark and logo in connection with such advertisement and promotion.
3. Account Conversions and Transitions; Agency Responsibility
The following Section governs the conversion of one type of Account to a different type of Account, and the assignment of Billing Agency responsibility to a different Agency.
3.1 Billing Agency Designation Changes. Responsibility for receiving and paying Aparagon invoices associated with a Managed Account may be transferred by the Billing Agency to a different Agency, but only with Aparagon’s express approval. Accomplishing that conversion requires (i) documented signoff, submitted through the Platform, from the Billing Agency on a Managed Account, and (ii) documented signoff, submitted through the Platform, of another Agency’s affirmative acceptance of the designation of the role of Billing Agency for that Managed Account. Even if such documentation is submitted, however, Aparagon reserves the sole and absolute discretion to refuse to approve the transfer.
3.2 Disconnecting a Connected Agency. Aparagon or Advertiser may disconnect any Connected Agency from a Direct Account at any time. For a Managed Account, Aparagon or the Billing Agency may disconnect any Connected Agency from that Account at any time. For a Companion Account, the Agency for which it was created may disconnect any Connected Agency from that Account at any time. Advertiser may also reclaim control of a Managed Account from its Billing Agency as described in Section 3.3(b), including electing whether to fully disconnect that Agency or retain it as a Connected Agency. In the event that Advertiser fully disconnects an Account’s Billing Agency without designating a replacement Billing Agency, the Account becomes a Direct Account and Advertiser resumes Administrative Permissions over the Account as described in Sections 1.2 and 3.3(b). A Connected Agency may also notify Aparagon of its intent to terminate its own connection with a specific Advertiser. Disconnection of an Agency under this Section, whether as a Connected Agency or as a Billing Agency, is distinct from, and does not require, a termination of that Agency’s Agreement with Aparagon pursuant to Section 8.
3.3 Account Conversions.
(a) Direct Account to Managed Account. Although an Advertiser is always solely responsible for managing its Direct Account and for receiving and paying all invoices that pertain to its Direct Account, the Advertiser may request to transfer that responsibility to an Agency. To accomplish this transfer, the Advertiser’s Direct Account must be converted to a Managed Account that is managed by the Advertiser’s Agency, and that Agency must be designated as the Billing Agency on that new Managed Account. Accomplishing that conversion requires (i) documented signoff, submitted through the Platform, from the Advertiser then controlling the Direct Account, and (ii) documented signoff, submitted through the Platform, of the new Agency’s affirmative acceptance of the designation. Even if such documentation is submitted, however, Aparagon reserves the sole and absolute discretion to decline an Account conversion request.
(b) Managed Account to Direct Account. Advertiser may also request to reclaim control of a Managed Account that an Agency created by converting it to a Direct Account and resuming direct invoice payment responsibility under Section 7.2(a). Unlike a request under Section 3.3(a) to convert a Direct Account into a Managed Account, a reclaim request does not require the existing Billing Agency’s signoff. As with any change described in this Section, Aparagon alone decides whether to approve a reclaim request, and its approval is discretionary and not guaranteed. If Aparagon approves a reclaim, Advertiser must elect either to (i) fully disconnect the former Billing Agency from the Account, or (ii) retain the former Billing Agency as a Connected Agency to the Account, without control or billing responsibility going forward.
(c) Outstanding Invoices Upon Conversion. Because fees and invoices are attributes of the responsible Party’s own billing relationship with Aparagon rather than of the Account itself (Section 7.1), a change in an Account’s type does not transfer any accrued invoice; an invoice accrued while a given Party was responsible for the Account remains that Party’s sole responsibility under Section 7.3 regardless of any later change, and such a change may proceed whether or not the Account has any open invoice. Aparagon shall have the option of requiring the responsible Party on outstanding invoices to affirmatively acknowledge its responsibility as a condition to approving the conversion of any Account.
3.4 Transition of Managed Accounts. When a Managed Account converts to a Direct Account and Advertiser assumes Administrative Permissions over it, whether as described in Sections 1.2 and 3.3(b) or upon an automatic conversion under Section 8.5:
(a) Advertiser retains all rights it already holds in its Client Data, Platform Data, and Advertiser Content;
(b) on the date of transfer, all campaigns will be marked complete regardless of current status. Advertiser and Agency shall be responsible for any determinations regarding advertising content or other material that Agency contributed to the Account reflecting Agency’s own methodology or proprietary tools (“Agency Work Product”). If a dispute exists between Advertiser and Agency as to the ownership or rights to any Agency Work Product or any other materials or works that appear on the Account, Aparagon must be notified of such dispute prior to the date of transfer. Upon receipt of such notice, Aparagon may take whatever action it deems necessary in its sole and absolute discretion, including, without limitation, suspending the Account pending receipt of confirmation from Agency and Advertiser that the dispute is resolved; and
(c) where Advertiser assumes Administrative Permissions as described in Sections 1.2 and 3.3(b), Aparagon will provide Agency five (5) days’ notice before that assumption becomes effective, so that Agency may remove or flag any Agency Work Product it does not wish to remain in the Account. Where Advertiser instead assumes Administrative Permissions upon an automatic conversion under Section 8.5, that assumption is effective immediately and is not delayed by this Section 3.4(c); Aparagon will instead provide Agency five (5) days following the automatic conversion to identify and flag, for removal, any Agency Work Product it does not wish to remain in the Account, without suspending or delaying Advertiser’s Administrative Permissions in the interim.
(d) In no event or circumstance shall Aparagon be responsible or liable for any decisions that Aparagon makes or actions that Aparagon takes with respect to or concerning any disputes between Advertisers and Agencies concerning Agency Work Product or other materials or works on any Account, and Advertiser and Agency hereby waive any rights, claims, causes of action, or any other remedies that they may otherwise have against Aparagon under applicable Law with respect to any such disputes or any Account that is associated with such disputes.
3.5 No Allocation; Disputes. These Terms do not allocate Intellectual Property rights between Advertiser and Agency; any such allocation is governed solely by their own separate agreement, if any, and Aparagon has no obligation to investigate or resolve a dispute between them over it.
4. Acceptance
4.1 Acceptance by Authorized Users. Every individual must affirmatively accept these Terms before being granted access to the Platform as an Authorized User of any Account or Profile. No handwritten or electronic signature is required.
4.2 Acceptance by Advertiser and Agency. Advertiser accepts these Terms and becomes bound as a Party upon the first acceptance of these Terms under Section 4.1 by an individual, who while operating in good faith and with authority, creates a Direct Account on behalf of Advertiser. Agency accepts these Terms and becomes bound as a Party upon the first acceptance of these Terms under Section 4.1 by an individual, who while operating in good faith and with authority, creates an Agency Profile on behalf of Agency.
4.3 Managed and Companion Accounts. Advertiser does not itself take any action to create a Managed Account, and is not bound by these Terms with respect to a Managed Account merely because an Agency created it on Advertiser’s behalf. The Agency that creates a Managed Account is automatically designated as the Billing Agency. By creating a Managed Account, the Billing Agency acknowledges and agrees that it accepts these Terms with respect to that Managed Account and that it is solely responsible and assumes all liability for all obligations under these Terms with respect to that Managed Account for so long as the Agency is the Billing Agency on that Managed Account.
(a) If an Account Type or Billing Agency changes pursuant to Section 3.1 or 3.3, or an Account converts to a Direct Account under Section 8.5, responsibility for the Account’s obligations under these Terms passes, effective as of the date of that change, to the Party newly responsible for the Account. This includes circumstances where Advertiser reclaims control and the Account becomes a Direct Account, a different Agency becomes the Billing Agency, or the Account automatically converts to a Direct Account because its Billing Agency’s Agreement terminates. The change in responsibility does not relieve the prior responsible Party of liability for obligations incurred or amounts unpaid while it was responsible for the Account. Advertiser becomes bound by these Terms with respect to an Account that becomes a Direct Account under this Section as described in Section 4.2.
(b) For a Companion Account, Agency alone is responsible for all obligations under these Terms with respect to that Account, consistent with Agency being treated as an Advertiser under Section 1.1(c).
4.4 No Advertiser Notice. Aparagon may, but is not obligated to, notify Advertiser of the creation of an Account in its name using contact information provided by the Agency that created the Account. Aparagon is not obligated to independently verify an Agency’s authority to create an Account or establish a connection on an Advertiser’s behalf, and may rely on Agency’s representation as described in Section 2.5.
5. Aparagon’s Services
5.1 Services to Advertiser. Provided that Advertiser (i) is not in breach of its obligations and (ii) completes and maintains integration as described in Section 1.3, Aparagon will grant Advertiser access to an Account that enables Advertiser, or any of its connected Agencies, to purchase digital ads through the Platform, to use the Aparagon Insights Engine, and, where enabled, to use Aparagon Conversion Events as described in Sections 1.3(c) and 1.5.
5.2 Services to Agency. An Agency that registers a Profile is provided the Services described in Section 2 and access to a Profile unique to Agency.
5.3 Subcontractors. Advertiser and Agency acknowledge and agree that Aparagon may use subcontractors and consultants to perform some of the Services, provided that such subcontractors and consultants are required to maintain confidentiality and security protections no less robust than those maintained by Aparagon.
5.4 Demand-Side Platform. Advertiser and Agency acknowledge that Aparagon provides the Services, in part, by connecting to Amazon’s DSP, and that activities engaged through Amazon DSP are subject to separate terms to which Aparagon will strictly adhere and comply. Advertiser and Agency acknowledge and agree that by accepting these Terms that they also: (i) agree to the current Amazon DSP Agreement found here: advertising.amazon.com/dsp/agreement/en; and (ii) will not attempt to take any action on AMP that may violate Amazon DSP Agreement. Aparagon is not liable for Amazon DSP actions that may impact its ability to deliver the Services.
5.5 AI-Assisted Features. Aparagon may make AI-Assisted Features available within the Platform to assist with campaign bidding and optimization, generate recommendations, and build campaign assets, including creative content. AI-Assisted Features may evolve, and Aparagon may add, modify, or remove them at any time.
(a) Ownership of AI-Generated Creative. Notwithstanding Section 6.4, and to the maximum extent of applicable Law, including copyright law, Advertiser, in the case of a Direct Account, and Agency, in the case of a Managed or Companion Account, shall own all right, title, and interest in and to AI-Generated Creative created for its Account, and Aparagon assigns, and will assign, to Advertiser or Agency any rights Aparagon may otherwise hold in that AI-Generated Creative.
(b) Training on Client Data. Aparagon may use an Account’s own Client Data to train, tune, or improve the AI-Assisted Features made available to that Account, consistent with Section 10.4. Aparagon will not use one Advertiser’s Client Data to train, tune, or improve AI-Assisted Features made available to any other Advertiser’s Account.
(c) No Warranty of AI Output. Aparagon does not warrant that any bid, budget, optimization decision, or recommendation an AI-Assisted Feature proposes or executes will achieve any particular result, or that AI-Generated Creative will be accurate, suitable, or free of error. Before publishing or otherwise using AI-Generated Creative, Advertiser or Agency, as applicable, is solely responsible for reviewing it for compliance with Section 9.1(g) and all applicable Law.
5.6 Platform Modifications. Aparagon reserves the right to modify, update, enhance, or discontinue any feature, functionality, or component of the Platform at any time, with or without notice. Aparagon will use commercially reasonable efforts to provide Advertiser and Agency at least thirty (30) days’ advance notice before discontinuing any material feature or functionality on which Advertiser or Agency materially relies for ongoing campaign operations; provided, however, that Aparagon may make changes without advance notice where necessary to comply with applicable Law, respond to a security threat, or address technical issues that could adversely affect Platform performance or integrity. No modification to the Platform under this Section 5.6 entitles Advertiser or Agency to any refund, credit, or termination right, except as otherwise expressly provided in these Terms.
5.7 Beta Features and Early Access Programs. From time to time, Aparagon may offer Advertiser or Agency access to features, tools, integrations, or other functionality that Aparagon designates as “beta,” “preview,” “early access,” “experimental,” or similar terminology (collectively, “Beta Features”). Advertiser and Agency acknowledge and agree that:
(a) Beta Features are provided “AS IS” and “AS AVAILABLE” without any warranty of any kind, express or implied, including warranties of merchantability, fitness for a particular purpose, or non-infringement. The warranties in Section 9.2, including the uptime commitment in Section 9.2(b), do not apply to Beta Features;
(b) Beta Features may contain bugs, errors, or other defects, may not function as intended, and may cause data loss or other adverse effects. Advertiser and Agency assume all risk associated with their use of Beta Features;
(c) Aparagon may modify, suspend, or discontinue any Beta Feature at any time, without notice or liability, and is under no obligation to make any Beta Feature generally available;
(d) Aparagon’s aggregate liability for any claims arising out of or relating to Beta Features shall not exceed One Hundred Dollars ($100), notwithstanding any other provision of these Terms; and
(e) any feedback, suggestions, or reports Advertiser or Agency provides regarding Beta Features are subject to Section 6.6 (Feedback License).
6. Platform Access and Use
6.1 Authorized Users; Access Limitations. Every individual who accesses the Platform must be added as an Authorized User either to an Advertiser’s Direct Account or to an Agency’s Profile, subject to the terms and obligations in this Section 6. Advertiser may grant access to its Direct Account, and Agency may grant access to its Profile, to Authorized Users, which may include their respective officers, employees, and third-party contractors, consultants, and agents. Advertiser controls the permission levels granted to each Authorized User it adds to its Direct Account and Agency controls the permission levels granted to each Authorized User it adds to its Profile. Collectively, all individuals granted access by Advertiser or Agency are “Authorized Users,” provided that:
(a) An Authorized User must be a human, not an entity, a group of individuals, or a computer or AI-enabled or AI-generated bot;
(b) Each Authorized User will receive a username and login credentials associated with, and unique to, that individual’s email address. No Authorized User shall share credentials with, or permit use of credentials by, any other person or entity, whether a Third Party or associated with Advertiser, Agency, or another Authorized User. Aparagon may suspend or terminate any Authorized User’s access without notice if Aparagon determines that credentials have been or are about to be shared;
(c) Advertiser and Agency will promptly notify Aparagon of any actual or suspected unauthorized access to or use of the Platform or Platform Information; and
(d) Advertiser and Agency are solely responsible for directing, controlling, and supervising the Authorized Users to whom they, respectively, granted access, and will ensure each follows these Terms and all other applicable Aparagon policies.
6.2 Termination of Authorized Users. Advertiser and Agency will promptly deactivate any Authorized User whose authorization is terminated, and Aparagon reserves the right to terminate any Authorized User’s access to the Platform or to any Account if, in Aparagon’s sole and absolute discretion, termination is warranted.
6.3 Ownership. All Platform Information constitutes Confidential Information, as defined in Section 11.1, and is the sole and exclusive property of Aparagon. Advertiser and Agency have only such limited rights in Platform Information as are expressly granted in these Terms, and all rights not so granted are reserved to Aparagon. Advertiser and Agency will not: (a) use, reproduce, publish, sell, license, display, distribute, or otherwise make available any Platform Information to any Third Party except as approved in advance and in writing by Aparagon; (b) permit any Affiliate or Third Party to access or use the Platform or Platform Information except as authorized in advance and in writing by Aparagon; or (c) disassemble, decompile, manipulate, or reverse engineer any portion of the Platform, and will take all necessary steps to prevent any such action.
6.4 No Work for Hire; Intellectual Property. This is not a work-for-hire agreement. Except for Agency Work Product (as described in Section 3.4(b)) and AI-Generated Creative (as described in Section 5.5(a)), all copyright rights in all deliverables created hereunder will remain the property of Aparagon. All Intellectual Property, including ownership and use of Trade Secrets, in all pre-existing works and Derivative Works, and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice by Aparagon in performing the Services, are and will remain the exclusive property of Aparagon.
6.5 License from Advertiser and Agency. Advertiser and Agency grant Aparagon a worldwide, non-exclusive, royalty-free, fully-paid, sublicensable right and license to use any advertising content and materials that Advertiser, Agency, or their Authorized Users provide to Aparagon in connection with the Services, including trademarks, trade names, service marks, and trade dress of Advertiser or Agency (“Licensed Content”), provided that Aparagon will not materially alter Licensed Content without consent, except to resize or reformat as necessary to deliver the Services.
6.6 Feedback License. If Advertiser, Agency, or any Authorized User provides Aparagon with any feedback, suggestions, ideas, enhancement requests, recommendations, or other input regarding the Platform or the Services (collectively, “Feedback”), Advertiser and Agency hereby grant Aparagon a perpetual, irrevocable, worldwide, royalty-free, fully-paid, sublicensable, and transferable license to use, reproduce, modify, create derivative works from, distribute, publicly display, publicly perform, and otherwise exploit such Feedback for any purpose, without attribution, compensation, or any obligation to Advertiser, Agency, or any Authorized User. Advertiser and Agency acknowledge that Aparagon may have developed, or may in the future develop, features, products, or services that are similar to or competitive with Feedback, and nothing in these Terms limits Aparagon’s right to independently develop, acquire, license, market, or distribute any technology or content. Aparagon is under no obligation to use, implement, or respond to any Feedback.
6.7 Publicity and Reference Rights. Subject to the terms of this Section 6.7, Aparagon may identify Advertiser and Agency as customers of the Platform in Aparagon’s marketing materials, website, customer lists, and investor presentations. Aparagon may use Advertiser’s and Agency’s name, trade name, trademark, and logo solely for this purpose, provided that Aparagon will: (a) comply with any trademark usage guidelines Advertiser or Agency provides in writing; and (b) promptly cease such use upon written request from Advertiser or Agency. Advertiser and Agency may withdraw this consent at any time by providing written notice to Aparagon; upon receipt of such notice, Aparagon will remove Advertiser’s or Agency’s name and marks from future marketing materials within thirty (30) days, though Aparagon is not required to recall or modify materials already distributed. For any use beyond customer identification—including detailed case studies, testimonials, quotes, or press releases—Aparagon will obtain Advertiser’s or Agency’s prior written approval, which may be withheld in Advertiser’s or Agency’s sole discretion.
6.8 Suspension. In addition to any other suspension rights described in these Terms, Aparagon may immediately suspend access to all or part of the Platform, an Account, or a Profile if Aparagon reasonably believes that (a) Advertiser, Agency, or an Authorized User has breached these Terms or engaged in fraudulent, illegal, or abusive activity; (b) continued access poses a security risk to the Platform or to any Third Party; or (c) suspension is necessary to comply with applicable Law or a request from a governmental authority. Aparagon will use commercially reasonable efforts to notify the affected Advertiser or Agency of the suspension and its cause, except where prohibited by Law or where notice would compromise security or an ongoing investigation. Upon suspension, all campaign activity within the affected Account(s) is paused and the resumption of any existing campaign or submission of any new campaign is on hold.
7. Fees, Pricing, and Invoicing
7.1 General. Unless and until ads are purchased, an Account will not incur any fees on the Platform. In connection with digital ads purchased through the Platform, Aparagon charges Aparagon Media Fees and Platform Usage Fees (together, the “Fees”), as described in this Section 7. Fees and invoices are billed to, and are the responsibility of, the Party responsible for the applicable Account under its Account Type (Advertiser, for a Direct Account; the Billing Agency, for a Managed Account; or Agency, for its own Companion Account) and are tracked within that Party’s own Manager View as an attribute of that Party’s billing relationship with Aparagon, rather than as an attribute of the Account itself. Agency Markup, where applicable to a campaign order, is governed by Section 7.9, is not a Fee, and is neither billed nor collected by Aparagon.
7.2 Fees by Account Type. The Party responsible for an Account under its Account Type shall pay Aparagon Media Fees, reflecting the amount Aparagon charges for digital ads delivered under the applicable campaign order’s parameters, and a Platform Usage Fee calculated as a fixed percentage of Aparagon Media Fees. The applicable percentage is assigned when a campaign order is submitted and remains fixed for that campaign order’s duration; Aparagon Media Fees remain variable throughout the campaign based on actual ad delivery. The Platform Usage Fee percentages are as follows:
(a) Direct Accounts. At the time an Advertiser places a campaign order on its Direct Account, the Platform Usage Fee that Advertiser will pay for that order is the percentage that is published in the Billing module in the Account Manager View at the time the order is placed.
(b) Managed Accounts. At the time a Billing Agency places a campaign order on a Managed Account, the Platform Usage Fee that the Billing Agency will pay for that order is the single percentage rate that is published in the Manager View of the Billing Agency’s Profile at the time the order is placed. This percentage applies across every Advertiser Account for which it is the Billing Agency. This percentage is confidential between Aparagon and the Billing Agency, as further described in Section 11.4.
(c) Companion Accounts. At the time an Agency places a campaign order on its Companion Account, the Platform Usage Fee that the Agency will pay for that order is the percentage then in effect for its Profile as published within the Billing module of its Manager View.
7.3 Billing Agency Acknowledgments and Liability.
(a) For a Managed Account, the Billing Agency is liable for payment of all Aparagon invoices accrued by the Account that are not timely paid. No dispute between Advertiser and its Billing Agency impacts or delays any payment obligation of the Billing Agency under this Section 7.3(a).
(b) Authorized Users with authority to submit campaign orders under Section 2.3(b) act on the Account’s behalf when doing so, including by incurring Aparagon Media Fees and Platform Usage Fees, and by finalizing any applicable Agency Markup as described in Section 7.9(c).
(c) The Billing Agency acknowledges and agrees that each Advertiser it represents has fully authorized it to accept the fee terms in Section 7.2(b) on that Advertiser’s behalf.
7.4 Platform Credits. From time to time, Advertiser or a Billing Agency may receive Platform Credits from Aparagon to apply against Platform Usage Fees (but not against Aparagon Media Fees or any Agency Markup). Platform Credits provided to a Billing Agency may be Advertiser-specific (applicable only to that Advertiser’s Account) or for the Billing Agency’s general use (applied to the total of its invoice). Platform Credits are a dollar-for-dollar value, expire on a specified date, and do not apply to fees incurred after expiration. Advertiser and each Billing Agency can view their respective Platform Credits within the Billing module of their Manager View. Advertiser will not have direct access to, or notice of, Platform Credits applied to a Billing Agency’s invoice, though Advertiser may become aware of generic, non-Advertiser-specific Aparagon-sponsored promotions. Platform Credits have no cash value and are not refundable or transferable. If the Account or Profile to which a Platform Credit applies is terminated, any unused Platform Credit automatically terminates as of the termination’s effective date and may not thereafter be applied, redeemed, or carried over.
7.5 Invoicing. All invoices are sent electronically to Advertiser directly for Direct Accounts, to the Billing Agency only for Managed Accounts, and to Agency for its own Companion Account. Each invoice sets forth a breakdown of the Aparagon Media Fees and Platform Usage Fees comprising the total amount due; any Agency Markup is not shown on, or included in, an invoice, as described in Section 7.9(b). Advertiser, the Billing Agency, or Agency, as applicable, is responsible for providing invoicing details and a billing point of contact within its Manager View. Aparagon sets the payment term for each Advertiser, Billing Agency, or Agency and publishes it within the Billing module of its Manager View. Time is of the essence with respect to payment deadlines; Aparagon reserves the right to immediately suspend the Account, including all campaign orders whether scheduled or active, if payment is not received within the applicable payment term. A Billing Agency is responsible for timely paying Aparagon invoices for the Accounts for which it is the Billing Agency, regardless of whether it has been reimbursed or otherwise paid by the applicable Advertiser.
7.6 General Payment Terms.
(a) Advertiser and Agency have no right of offset or withholding with respect to any Aparagon invoice that is due. Amounts not paid when due bear interest from the due date until paid, at the lesser of (i) 1.5% per month or (ii) the greatest rate permitted by applicable Law.
(b) If any amount due becomes past due, Aparagon may, at its option and without further notice, withhold all Services until all invoices and accrued interest are paid in full.
(c) Advertiser and Agency agree to reimburse Aparagon for any costs, expenses, or fees, including reasonable attorneys’ fees and collection services fees, incurred in connection with collecting or recovering amounts due, including fees incurred collecting from a Billing Agency.
(d) Advertiser, Billing Agency, and Agency must notify Aparagon in writing of any dispute regarding a Fee or invoice within thirty (30) days after the date of the applicable invoice; a dispute not raised within that period is waived. A timely dispute does not relieve Advertiser, Billing Agency, or Agency of its obligation under Section 7.6(a) to pay the disputed amount when due pending resolution of the dispute.
7.7 Amendments to Fee Terms. Aparagon may change the Platform Usage Fee percentage or payment term applicable to an Account or Profile at any time, effective upon publishing the change and notifying the affected Advertiser, Billing Agency, or Agency within the Billing module of its Manager View. A percentage change applies only to campaign orders submitted on or after its effective date, and does not alter the percentage already locked in for a campaign order submitted before that date. Any other change to the fee terms applicable to an Account or Profile must be agreed to in writing by Aparagon and the applicable Advertiser, Billing Agency, or Agency.
7.8 Credit Terms. Aparagon may, in its discretion, require an Advertiser, Billing Agency, or Agency to provide a security deposit, prepay for Services, satisfy a credit review, or accept a shortened payment term, as a condition of establishing or continuing an Account’s, Billing Agency’s, or Agency’s ability to incur Aparagon Media Fees and Platform Usage Fees on credit, and may adjust or revoke previously extended credit terms at any time based on payment history or creditworthiness.
7.9 Agency Markup.
(a) During campaign creation, for any Account, an Agency with access to the Account may populate a field specifying a markup expressed as a percentage of the applicable campaign order’s Campaign Budget (“Agency Markup”). Agency Markup is subtracted from the Campaign Budget before Aparagon Media Fees and Platform Usage Fees are calculated; the remainder of the Campaign Budget after subtracting Agency Markup is the amount available for Aparagon Media Fees and Platform Usage Fees under this Section 7.
(b) Agency Markup is displayed within the Billing module of the Manager View of the Party responsible for paying the Fees accrued by an Account (Advertiser, for a Direct Account; the Billing Agency, for a Managed Account; or Agency, for its own Companion Account), and any individual with access to that module can see the applied Agency Markup, but it is not shown on, or included in, any Aparagon invoice (See Section 7.5). Agency Markup also appears as a parameter established by the Authorized User submitting a campaign order on that Account, and any individual with access to the Campaigns module within an Account can see the Agency Markup percentage applied to that campaign order, or the absence of one if none was specified. Aparagon does not bill, collect, hold, or remit any amount corresponding to Agency Markup; Agency Markup reflects an arrangement solely between the Agency that specified it and its own client, for which Aparagon has no responsibility.
(c) Agency Markup may be populated or edited by any individual with access to the applicable Account until the campaign order is submitted. Submission of a campaign order by an Authorized User with authority to do so under Section 2.3(b) constitutes acceptance of the Agency Markup value as then entered, and Agency Markup cannot thereafter be changed for that campaign order.
(d) For a Companion Account, because Agency is treated as an Advertiser under Section 1.1(c) and a Companion Account may not be used to advertise any client’s services, any Agency Markup specified for a Companion Account campaign order reflects Agency’s own internal accounting only and does not correspond to a separate client relationship.
8. Term and Termination
8.1 Term. The applicable Agreement (Advertiser/Aparagon or Agency/Aparagon) commences on the Effective Date and continues in effect until terminated as provided in this Section 8.
8.2 Termination for Convenience. Either Party may terminate its Agreement for convenience, without cause, upon thirty (30) days’ written notice to the other Party. Termination under this Section does not relieve Advertiser or its Billing Agency of responsibility for amounts owed for Services rendered before the termination’s effective date, as further described in Section 8.5. Notwithstanding the foregoing, an Account’s Admin may request termination of that Account directly within the Platform on behalf of the Party responsible for the Account under Section 1.2, which request constitutes that Party’s written notice of termination for convenience under this Section 8.2 as to that Account. Upon such a request, Aparagon will immediately suspend all campaign delivery through the affected Account, effective the same day as the request, while continuing to permit Platform access for that Account for the remainder of the notice period described above, so that the Parties may resolve any outstanding invoices or other Account-control issues. The Account closes, ceasing all further access to the Platform, upon the later of: (i) expiration of that thirty (30)-day notice period, or (ii) resolution of all outstanding invoices or other Account-control issues to Aparagon’s satisfaction. Client Data associated with a closed Account is purged within thirty (30) days following the Account’s closure, as further described in Section 11.3.
8.3 Termination for Breach. A Party may terminate its Agreement in the event of a material breach by the other Party that remains uncured: (a) for a monetary breach, ten (10) days following written notice; or (b) for a non-monetary breach, thirty (30) days following written notice; provided that a notice of termination will not become effective if the breach is cured within the applicable period. Where the breaching Party is a Billing Agency and the monetary breach relates to fewer than all of the Accounts for which it is the Billing Agency, Aparagon’s termination right under this Section extends only to the affected Accounts, and its Agreement with the Billing Agency otherwise remains in effect. Termination is in addition to any other available remedies.
8.4 Bankruptcy, Insolvency, or Financial Insecurity. A Party may terminate immediately upon written notice if the other Party (a) becomes or is declared insolvent or bankrupt; (b) is subject to a voluntary or involuntary bankruptcy or similar proceeding not dismissed within ninety (90) days; (c) ceases to do business in the normal course; or (d) makes an assignment for the benefit of creditors. The applicable Agreement terminates immediately upon a court determination that either Party is excused or prohibited from performing its obligations, including rejection of the Agreement under 11 U.S.C. § 365.
8.5 Obligations upon Termination. Termination does not relieve any Party of liability for obligations incurred or amounts unpaid at the time of termination. Within five (5) days following the termination’s effective date, Advertiser and/or its Billing Agency, as applicable, will pay Aparagon for all Services rendered and not yet paid, including Services rendered but not yet invoiced. If a Billing Agency’s Agreement terminates for any reason under this Section 8, the fee and invoicing arrangement described in Section 7.2(b) terminates for each Managed Account for which it served as Billing Agency. Upon termination of a Billing Agency, Aparagon shall have the right, but not an obligation, to contact the Advertiser(s) associated with that Billing Agency’s Managed Account(s) to determine whether each Advertiser desires to convert the Account into a Direct Account or desires to designate a new Billing Agency for its Managed Account. If an Agency’s Agreement terminates for any reason under this Section 8, that Agency’s Profile and Companion Account terminate as well, and the data associated with them is purged as described in Section 11.3. All Parties will continue to adhere to Section 11 (Confidentiality) following termination.
8.6 Prohibited Persons.
(a) Definition. Notwithstanding any other provision of these Terms, any Person who agrees to or purports to agree to these Terms but who is (i) a prospective or direct competitor of Aparagon, or (ii) a Person whose reason or intent for accessing the Platform is for any purpose other than using the Platform and Services for or on behalf of an Advertiser (each, a “Prohibited Person”), shall not possess and shall not be deemed to have received any license, right, or entitlement to access, use, view, or otherwise perform any activities on or through the Platform. Any access to the Platform by a Prohibited Person, whether or not obtained by agreeing to these Terms, constitutes unauthorized access.
(b) Representation and Warranty. By agreeing to these Terms, each Person represents and warrants that, at the time of acceptance and at all times thereafter while accessing or using the Platform: (i) such Person is not a prospective or direct competitor of Aparagon; (ii) such Person’s reason and intent for accessing the Platform is solely to use the Platform and Services for or on behalf of an Advertiser; and (iii) such Person is not acting on behalf of, or at the direction of, any Prohibited Person. Each Person agrees to promptly notify Aparagon in writing if any of the foregoing representations becomes inaccurate.
(c) Liquidated Damages. Any Prohibited Person who accesses the Platform in violation of this Section 8.6 shall be liable to Aparagon for liquidated damages in the amount of Five Thousand Dollars ($5,000) per access event (in other words, if that Person accesses the Platform on two separate occasions, the liquidated damages is $5,000 x 2). The Parties acknowledge and agree that the actual damages resulting from unauthorized access by a Prohibited Person may be difficult to ascertain, that this liquidated damages amount represents a reasonable estimate of such damages, and that such liquidated damages do not constitute a penalty; provided, however, that Aparagon shall have the right and discretion to seek any other damages and remedies available to it under any applicable Law, in addition to or in lieu of liquidated damages, against any Person or that Person’s employer or other third-party that authorized, managed, controlled, or benefited from the Prohibited Person’s access and conduct that violates these Terms.
(d) Injunctive Relief; Consent to Jurisdiction. Any Prohibited Person who accesses the Platform in violation of this Section 8.6 hereby consents to the entry of injunctive relief, without the posting of a bond, prohibiting such Prohibited Person from (i) further accessing or using the Platform; (ii) using, disclosing, publishing, or disseminating any materials, documents, Platform Information, Confidential Information, or other content acquired, viewed, or derived from such unauthorized access; and (iii) retaining any copies, reproductions, or derivatives of such materials. Each Prohibited Person acknowledges that unauthorized access to the Platform will cause irreparable harm to Aparagon for which monetary damages alone would be an inadequate remedy. By accessing the Platform, each Prohibited Person irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts sitting in the State of Maryland for any action or proceeding arising out of or relating to this Section 8.6.
(e) Disgorgement. In addition to any other remedies available under this Section 8.6 or at law or in equity, including liquidated damages, any Prohibited Person shall disgorge to Aparagon all profits, revenue, benefits, or other consideration derived, directly or indirectly, from any unauthorized access to or use of the Platform, including but not limited to any competitive advantage, business opportunity, customer relationship, or commercial benefit obtained or enhanced through such unauthorized access.
(f) Clawback and Forfeiture. Any Prohibited Person shall, upon demand by Aparagon, immediately return, destroy, or permanently delete (and certify such destruction or deletion in writing) any and all data, information, analyses, reports, derivative work product, or other materials obtained, created, or derived through unauthorized access to the Platform. Any such materials shall be deemed the sole and exclusive property of Aparagon, and the Prohibited Person shall acquire no right, title, or interest therein, notwithstanding any work, investment, or effort expended by the Prohibited Person in connection with such materials.
(g) Indemnification for Enforcement Costs. Any Prohibited Person shall indemnify, defend, and hold harmless Aparagon, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all costs, expenses, losses, damages, and liabilities (including reasonable attorneys’ fees, expert witness fees, and court costs) incurred by Aparagon in connection with (i) investigating any suspected violation of this Section 8.6; (ii) enforcing any rights or remedies under this Section 8.6; (iii) pursuing any legal action, claim, or proceeding against a Prohibited Person; or (iv) responding to or defending against any claim, counterclaim, or affirmative defense asserted by a Prohibited Person in connection with such enforcement.
(h) Governing Law. Notwithstanding Section 13.9, any dispute arising out of or relating to this Section 8.6 shall be governed by and construed in accordance with the Laws of the State of Maryland, without regard to its conflict of laws principles, and any Prohibited Person irrevocably waives any objection to such governing law or to the exclusive jurisdiction and venue set forth in Section 8.6(d), including any objection based on forum non conveniens or inconvenient forum.
(i) Cumulative Remedies. The remedies set forth in this Section 8.6 are cumulative and in addition to any other rights or remedies available to Aparagon under these Terms, at law, or in equity. The exercise of any remedy under this Section 8.6 shall not preclude the exercise of any other remedy, and all such remedies shall be non-exclusive. No failure or delay by Aparagon in exercising any right or remedy under this Section 8.6 shall operate as a waiver thereof.
9. Representations, Warranties, and Limitation of Liability
9.1 By Advertiser and Agency. Each of Advertiser and Agency represents, warrants, and covenants that:
(a) it is solely responsible, at its own cost and expense, for any physical equipment and software necessary for its Authorized Users to access the Platform;
(b) it is responsible for protecting the security of the Platform and Platform Information and preventing unauthorized use or disclosure;
(c) it is responsible for all access to and use of Platform Information by or through its Authorized Users or any other Person that gains access to the Advertiser’s or Agency’s Account, including any Prohibited Person, whether or not the Advertiser or Agency has knowledge of or authorizes such access or use;
(d) it will maintain the confidentiality of all assigned usernames and login credentials;
(e) it will obtain and maintain any licenses, certificates, permits, approvals, or other authorizations required by Law applicable to its use of the Platform;
(f) it is solely responsible for the activities of the Authorized Users to whom it granted access, and will assure that all individuals and entities acting on its behalf comply with these Terms and all applicable Law, including data protection and privacy Law. Any act or omission by an Authorized User that would constitute a breach of these Terms is deemed a breach of these Terms by the Party that granted that Authorized User access;
(g) it is solely responsible for all Advertiser Content or Agency Content, as applicable, that it provides to Aparagon through its Account, its Profile, or an Account to which it is connected as a Billing Agency or Connected Agency. Such content will not: (i) be false, misleading, defamatory, harassing, or threatening; (ii) constitute unfair competition or unfair commercial practice; (iii) violate any applicable Law; (iv) infringe or misappropriate any Third Party’s Intellectual Property rights; or (v) violate the terms of any DSP that Aparagon uses in connection with the Services;
(h) it will not remove, alter, or obscure any proprietary notices associated with the Platform and will fully reproduce such notices on all copies and outputs;
(i) it will not use any device, software, or routine to interfere with the proper working of the Platform, including its security measures;
(j) it holds good and valid title to all data, information, and documents it provides to Aparagon (including its Advertiser Content or Agency Content, as applicable, and, for Advertiser, its Client Data), free and clear of all encumbrances and liens; and
(k) its performance of these Terms will not, to its knowledge, violate or infringe any Third Party’s rights or any of its own policies; and
(l) it will not grant a Prohibited Person access to the Platform or to the Services, or otherwise share or permit a Prohibited Person to view, copy, reverse engineer, or to engage in any other conduct that the Advertiser or Agency would be prohibited from performing or conducting on or through the Platform.
9.2 By Aparagon.
(a) Aparagon represents and warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with current generally accepted industry standards and practice.
(b) Aparagon will use commercially reasonable efforts to make the Platform available 24/7, with uptime of at least 99%, measured monthly, excluding scheduled maintenance and any unavailability caused by Amazon, including its DSP (as described in Section 5.4) and AMC (as described in Section 1.3).
(c) Advertiser and Agency acknowledge that Aparagon has not made any express warranties except as set out in Section 9.2(a) and (b).
(d) LIMITATION OF WARRANTY. THE WARRANTY IN THIS SECTION 9.2 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, WORK PRODUCT, OR DELIVERABLES, OR AS TO ANY RESULTS OR ACHIEVEMENTS THAT MAY BE OBTAINED. EXCEPT AS SET FORTH IN THIS SECTION 9.2, APARAGON DISCLAIMS, AND ADVERTISER AND AGENCY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, AND NON-INFRINGEMENT, AND ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR PLATFORMS. ADVERTISER’S AND AGENCY’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS RE-PERFORMANCE, OR, IF RE-PERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID FOR THE NON-CONFORMING PLATFORM, EXCEPT THAT A FAILURE TO MEET THE UPTIME COMMITMENT IN SECTION 9.2(b) IS GOVERNED SOLELY BY SECTION 9.2(e).
(e) Uptime Remedy. If Aparagon fails to meet the uptime commitment in Section 9.2(b) for a given calendar month, Advertiser’s or Agency’s sole and exclusive remedy is a service credit against that month’s Platform Usage Fees for the affected Account, calculated as follows: (i) uptime of 95.0% up to 99.0%: a credit equal to 5% of that month’s Platform Usage Fees for the affected Account; (ii) uptime of 90.0% up to 95.0%: 10%; or (iii) uptime below 90.0%: 25%. To receive a credit, Advertiser or Agency must submit a request within thirty (30) days after the end of the affected month, together with reasonably supporting detail. This Section 9.2(e) states Aparagon’s entire liability, and Advertiser’s and Agency’s exclusive remedy, for any failure to meet the uptime commitment in Section 9.2(b), and does not otherwise affect the general limitations in Section 9.4.
9.3 Mutual. Each Party represents and warrants to the others that:
(a) it is duly organized, validly existing, and in good standing under the Laws of its jurisdiction of organization;
(b) it has full right, power, and authority to enter into these Terms and perform its obligations;
(c) its acceptance of these Terms and performance of its obligations hereunder have been duly authorized and do not conflict with its organizational documents, any material agreement to which it is a party, or applicable Law; and
(d) these Terms, upon acceptance in accordance with Section 4, constitute its legal, valid, and binding obligation, enforceable in accordance with their terms, subject to bankruptcy, insolvency, and similar Laws affecting creditors’ rights and general equity principles.
9.4 Limitation of Liability. The following limitations apply to all claims arising out of or relating to this Agreement, except as otherwise stated below:
(a) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO ACTION MAY BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER ACCRUAL OF THE CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, BREACH OF SECTION 11 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b) EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTIONS 6.1 AND 6.3, INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, BREACH OF SECTION 11 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT FOR A PROHIBITED PERSON AND ANY EMPLOYER, AGENT, OR OTHER THIRD-PARTY ACTING IN CONCERT OR PARTICIPATION WITH ANY PROHIBITED PERSON, OR THAT BENEFITED FROM A PROHIBITED PERSON’S ACTIONS IN VIOLATION OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) IN NO EVENT SHALL APARAGON’S LIABILITY FOR BREACH OF THIS AGREEMENT, OR SHALL ADVERTISER’S OR AGENCY’S TOTAL DAMAGES RESULTING FROM SUCH BREACH, REGARDLESS OF THE TYPE OR BASIS FOR SUCH DAMAGES, EXCEED THE TOTAL AMOUNT THAT ADVERTISER OR AGENCY PAID TO APARAGON WITHIN THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE ADVERTISER’S OR AGENCY’S CLAIM. NOTWITHSTANDING THE FOREGOING, APARAGON’S LIABILITY FOR ANY CLAIM ARISING FROM OR RELATING TO AMAZON’S DSP, AS DESCRIBED IN SECTION 5.4, SHALL NOT EXCEED THE LESSER OF (I) THE AMOUNT DESCRIBED IN THE PRECEDING SENTENCE OR (II) THE CAP ON AMAZON’S OWN LIABILITY IN EFFECT UNDER THE AMAZON DSP AGREEMENT, AS AMENDED FROM TIME TO TIME, AT THE TIME OF THE CLAIM. THIS SECTION 9.4(c) APPLIES WITHOUT EXCEPTION, INCLUDING TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, BREACH OF SECTION 11 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOTWITHSTANDING THAT SUCH CLAIMS ARE EXCLUDED FROM THE TIME LIMITATION IN SECTION 9.4(a) AND THE DAMAGES EXCLUSION IN SECTION 9.4(b); PROVIDED, HOWEVER, THAT THIS SECTION 9.4(c) DOES NOT LIMIT, AND SHALL NOT BE CONSTRUED TO LIMIT, ANY LIQUIDATED DAMAGES, DISGORGEMENT, OR INDEMNIFICATION OBLIGATION OWED TO APARAGON UNDER SECTION 8.6 (PROHIBITED PERSONS).
10. Data Privacy
10.1 Client Data.
(a) Advertiser retains ownership of its Client Data. Advertiser acknowledges that Client Data cannot be returned once received by Aparagon; Aparagon will instead purge such data as described in Section 11.3.
(b) Advertiser and Agency are solely responsible for obtaining any consent required under applicable Law before providing Client Data to Aparagon, whether through Simple Integration, Advanced Integration, or ACE Integration, and for the accuracy of any consent signal or configuration provided to Aparagon in connection with that Client Data. Aparagon may rely on the consent signal or configuration Advertiser or Agency provides without independent verification.
10.2 Platform Data.
(a) All Platform Data is Aparagon’s exclusive property. Advertiser may use Platform Data for purposes including, by way of example, planning, managing, and deploying campaign orders and evaluating their performance. Aparagon will not sell, license, or otherwise independently monetize Client Data or the data underlying Agency’s or Advertiser’s use of the Services.
(b) Advertiser and Agency will not use or disclose Platform Data, and will not permit any Third Party to use or disclose Platform Data, to retarget an individual or device; to create, supplement, or add to a profile of an individual or device; or to target or identify an individual or device based on that individual’s status as a customer of, or visitor to, Amazon, except for frequency capping or geo-targeting. Advertiser and Agency will reasonably cooperate with any audit or information request that Aparagon must satisfy under its own agreement with Amazon relating to Platform Data, and will require any Third Party to which they disclose Platform Data to be bound by confidentiality and non-use obligations at least as protective as those in this Section 10.2.
10.3 Data Policies. Aparagon’s Client Data Protection Policy and Data Retention Policy, describing the types of Client Data collected, the purposes for which it is used, applicable retention periods, and how Client Data is protected, are publicly available on Our Policies. Aparagon’s IT Security Policy, describing Aparagon’s internal security controls for the Platform, is made available within the Platform to any Authorized User of a registered Advertiser or Agency, and constitutes Aparagon’s Confidential Information under Section 11.1.
10.4 Data Isolation and Restricted Use. Client Data is maintained on a siloed, Advertiser-specific basis; Aparagon does not share or combine one Advertiser’s Client Data with that of any other Advertiser. This isolation extends to Client Data captured through ACE Integration: Aparagon will not enable, activate, or otherwise permit any Amazon-provided feature, including Amazon Ads Data Manager’s data-sharing capability, to share an Advertiser’s Client Data with another Advertiser’s Amazon account. Aparagon may in the future make available its own Platform-native mechanism for voluntary data collaboration among Advertisers or Agencies; use of any such mechanism will be governed by separate terms and requires the affirmative, opt-in consent of each Advertiser or Agency whose Client Data would be shared, and this Section 10.4 continues to apply in full to any Advertiser or Agency that has not so consented. Aparagon will not use Client Data to develop, train, or improve any model, product, or service other than to provide the Services to that Advertiser’s Account.
10.5 Security Incident Notification. Aparagon will notify Advertiser within a commercially-reasonable time after becoming aware of a security incident that results in the unauthorized access, acquisition, disclosure, alteration, or destruction of Client Data in Aparagon’s possession or control (a “Security Incident”), and will provide Advertiser the information reasonably available to Aparagon about the Security Incident as Advertiser may reasonably request to comply with its own notification obligations under applicable Law. Notice under this Section is not an acknowledgment by Aparagon of fault or liability.
11. Confidentiality
11.1 Obligation of Confidentiality. During the term of the applicable Agreement and for five (5) years thereafter, except as required by Law, each Party (“Receiving Party”) will hold in strict confidence and not disclose or use the other Party’s (“Disclosing Party”) Confidential Information for any purpose other than performance of its obligations hereunder. The prohibition against disclosure of Confidential Information constituting Aparagon’s Trade Secrets never expires; however, this prohibition does not apply if such secrets become publicly known through no fault of Advertiser or Agency. “Confidential Information” means any non-public information disclosed by one Party to another, whether orally or in writing, that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure. For Aparagon, this includes the functionality, design, structure, look and feel, manner and method of use, forms, and other aspects of the Platform and the manner in which Aparagon delivers the Services, and includes Trade Secrets. Each Party will protect the other’s Confidential Information using the same degree of care it uses for its own information of like value and sensitivity, but no less than a reasonable degree of care. Each Party must not disclose Confidential Information: (a) to any Third Party without the Disclosing Party’s prior written consent; (b) to personnel without a need to know; or (c) to personnel with a need to know, unless bound by nondisclosure obligations at least as protective as this Section. Receiving Party is responsible for any breach of these obligations by its personnel or by any person who acquires Confidential Information, directly or indirectly, from the Disclosing Party.
11.2 Obligations upon Breach; Equitable Rights. If Receiving Party discovers that Disclosing Party’s Confidential Information has been used, disseminated, or accessed in violation of this Section, Receiving Party will immediately, at its own cost: (a) notify Disclosing Party; (b) take commercially reasonable action to minimize the impact; and (c) take reasonable steps to prevent further disclosure. The Parties agree that breach or threatened breach of these obligations may cause irreparable harm for which there may be no adequate remedy at law; accordingly, Disclosing Party is entitled to seek injunctive relief and an accounting of profits and benefits arising from the violation, without posting a bond, cumulative with and in addition to any other available rights or remedies.
11.3 Destruction of Confidential Information. Receiving Party must promptly certify destruction of all copies of Confidential Information, and Aparagon will purge all Client Data within thirty (30) days following the termination or closure of the applicable Account or Profile, except that Aparagon may retain any data it is required to preserve under applicable Law or a legal or regulatory obligation, including a litigation hold, for so long as that requirement continues.
11.4 Confidentiality of Billing Agency Pricing and Platform Credits. A Billing Agency’s Platform Usage Fee percentage under Section 7.2(b), and any Platform Credits applied to a Billing Agency’s invoice under Section 7.4, are strictly confidential between Aparagon and the Billing Agency and will not be disclosed to or shared with any Third Party, including the applicable Advertiser.
12. Indemnification
12.1 A Party (an “Indemnitor”) will defend, hold harmless, and indemnify the other Party, its Affiliates, and their respective employees, agents, officers, and directors (collectively, “Indemnitees”) from and against any Third-Party liabilities, claims, actions, damages, fines, suits, fees (including reasonable attorneys’ fees), and costs (collectively, “Claims”) arising out of or in connection with Indemnitor’s (a) violation of applicable Law in connection with this Agreement; (b) breach of this Agreement; or (c) recklessness, negligence, or willful misconduct in connection with this Agreement (each, a “Trigger Action”). A Party that would otherwise be Indemnitor is not obligated to defend, indemnify, or hold harmless from Claims any person who would otherwise be an Indemnitee to the extent such Claims arise from a Trigger Action taken by that person.
12.2 Advertiser will defend, hold harmless, and indemnify Aparagon and its Indemnitees from any claims and liabilities arising from any actions of the Authorized Users to whom Advertiser granted access.
12.3 Agency will defend, hold harmless, and indemnify Aparagon and its Indemnitees from any claims and liabilities arising from any actions of the Authorized Users to whom Agency granted access, including any Authorized Users Agency granted access to an Account to which it is connected under Section 2.3 or 2.4.
12.4 Agency will further defend, hold harmless, and indemnify Aparagon and its Indemnitees from and against any claims and liabilities arising from Agency’s creation of an Account, or connection of an Account to its Profile, on behalf of an Advertiser without having obtained that Advertiser’s actual authorization to do so, as required under Section 2.5.
12.5 Aparagon’s Intellectual Property Indemnity. Aparagon will defend, hold harmless, and indemnify Advertiser and Agency and their respective Indemnitees from and against any Claims alleging that the Platform, as provided by Aparagon and used in accordance with these Terms, infringes or misappropriates a Third Party’s Intellectual Property rights. This Section 12.5 does not apply to the extent a Claim arises from: (a) Advertiser Content, Agency Content, or other materials provided by Advertiser or Agency; (b) modification of the Platform by any party other than Aparagon; (c) combination of the Platform with any product, service, or data not provided by Aparagon, where the Claim would not have arisen but for that combination; or (d) continued use of an infringing version of the Platform after Aparagon has notified Advertiser or Agency of the infringement and made available a non-infringing version providing substantially similar functionality. If the Platform becomes, or Aparagon believes it may become, the subject of an infringement Claim, Aparagon may, at its option and expense, (i) procure for Advertiser and Agency the right to continue using the Platform, (ii) modify or replace the Platform to be non-infringing without material loss of functionality, or (iii) if neither is commercially reasonable, terminate the affected Advertiser’s or Agency’s access to the Platform and refund any prepaid, unused fees. This Section 12.5 states Aparagon’s sole obligation, and Advertiser’s and Agency’s sole remedy, for any actual or alleged infringement or misappropriation of Intellectual Property rights.
12.6 The Indemnitee will give Indemnitor notice as soon as practicable of any Claim for which indemnification will or could be sought under this Section 12.
12.7 Defense and Cooperation. Provided Indemnitor confirms in writing its obligation to indemnify the Indemnitee for a given Claim, Indemnitor may assume and control the defense of that Claim with counsel of its choosing. Indemnitee will reasonably cooperate, at Indemnitor’s expense, in the defense of the Claim, including by providing information and assistance Indemnitor reasonably requests. Indemnitee may participate in the defense of the Claim with counsel of its own choosing, at its own expense. Indemnitor will not settle or compromise any Claim in a manner that admits fault on the part of Indemnitee, imposes any non-monetary obligation on Indemnitee, or fails to unconditionally release Indemnitee from all liability with respect to that Claim, without Indemnitee’s prior written consent, not to be unreasonably withheld. If Indemnitor does not assume the defense of a Claim within a reasonable time after receiving notice under Section 12.6, Indemnitee may defend the Claim itself, at Indemnitor’s expense, without prejudice to its right to indemnification under this Section 12.
13. Miscellaneous
13.1 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms creates any agency, partnership, joint venture, or other joint enterprise, employment, or fiduciary relationship, and no Party has authority to contract for or bind another Party.
13.2 Notices. All notices, including any notice of termination, must be given by email to the respective Party’s Admin, as designated within its Manager View on the Platform, or, if to Aparagon, to Aparagon Admin ([email protected]), or such other address as a Party provides in accordance with this Section, and are effective when sent unless the sender receives an automated delivery failure or bounce-back notification within twenty-four (24) hours, in which case the notice is not effective until successfully resent. Email notice sent to any other address is not effective.
13.3 Force Majeure. No Party will be liable in damages for, nor may these Terms be terminated by reason of, delay or default in performance caused by unforeseeable events beyond that Party’s reasonable control, including acts of God, fire, flood, health epidemic, explosion, acts of terrorism, strike, war, pandemic, insurrection, government restriction or prohibition, hurricanes, tornadoes, other natural disasters, and related events (a “Force Majeure Event”), provided the affected Party promptly notifies the other Party of the event and its anticipated effect, and uses reasonable efforts to resume performance as promptly as practicable. If the affected Party has not returned to full performance within thirty (30) days of the Force Majeure Event’s commencement, the other Party may terminate upon an additional thirty (30) days’ written notice. This Section does not apply to obligations unaffected by the Force Majeure Event or to any obligation to pay money.
13.4 Waiver. No waiver of any term or right is effective unless made in writing by an authorized representative of the waiving Party. Failure to enforce any provision on a particular occasion is not a waiver or modification of that provision, and does not impair the right to enforce it later.
13.5 Order of Precedence. In the event of a conflict between these Terms and any other policy, guideline, or documentation Aparagon posts on or makes available through the Platform, these Terms control except to the extent such other material expressly and specifically states an intent to supersede these Terms on a specific matter.
13.6 Severability. If any provision of these Terms is determined to be illegal, invalid, or unenforceable, the remaining provisions remain in full force and effect. The Parties authorize any court making such determination to modify the affected provision to effect, as closely as possible, its original intent.
13.7 Survival. Any provision required to ensure the Parties’ exercise of rights or performance of obligations (including obligations accrued as of termination), or intended by its terms or necessary implication to survive, survives termination of these Terms.
13.8 Modification. Aparagon reserves the right to modify these Terms at any time. Aparagon will notify Advertiser and Agency of material modifications to these Terms at least thirty (30) days before implementation, by emailing each Party’s primary contact on file and/or by posting notice on the Platform. If Advertiser or Agency does not agree to modified Terms, its sole remedy is to terminate within thirty (30) days of such notice. Continued use of the Platform after the expiration of this notice period shall constitute acceptance of the modified Terms.
13.9 Governing Law / Jurisdiction / Venue. These Terms are governed by the Laws of the State of Delaware, without reference to conflict-of-laws provisions. The Parties irrevocably submit to the exclusive jurisdiction of any federal or state court sitting in the State of Maryland for any dispute arising out of or relating to these Terms.
13.10 Waiver of Jury Trial and Class Actions. To the maximum extent permitted by Law, each Party waives any right to a trial by jury in any action or proceeding arising out of or relating to this Agreement. To the maximum extent permitted by Law, each Party further waives any right to participate in a class, collective, or representative action against the other Party in connection with this Agreement, and agrees that any dispute arising out of or relating to this Agreement will be brought only in an individual capacity.
13.11 Assignment. Neither Party may assign this Agreement without the other’s prior written consent, except that a Party may assign this Agreement without consent (a) to an Affiliate, or (b) in connection with a merger, acquisition, sale of all or substantially all of its assets, corporate reorganization, or similar transaction, provided that the assigning Party gives the other Party prompt written notice of the assignment. This Agreement binds and inures to the benefit of the Parties and their permitted successors and assigns. Any attempted assignment in violation of this Section is void.
13.12 No Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their permitted successors and assigns, and confer no rights on any other person or entity.
13.13 Rights Cumulative. The Parties’ rights and remedies under these Terms are cumulative and not exclusive of any rights or remedies available at law or in equity.
13.14 Headings; Construction. Headings are for convenience only and have no binding interpretive effect. Singular includes plural and vice versa; any gender includes all genders. “Include,” “includes,” and “including” do not limit the preceding terms and are deemed followed by “without limitation.” References to a “Section” refer to a section of these Terms unless context requires otherwise. Except as otherwise specifically provided, a requirement that communication be “in writing” or “written” is satisfied by an emailed communication subject to proof of receipt or delivery.
13.15 Representation; No Reliance. Each Party acknowledges that it has received independent legal advice regarding these Terms and is not relying on any representation or statement by the other Party or its employees, representatives, agents, or attorneys, except as expressly stated herein.
13.16 Entire Agreement. These Terms constitute the entire agreement between Aparagon and Advertiser and between Aparagon and Agency, and supersede all prior and contemporaneous agreements, understandings, and communications, whether written or oral, relating to their subject matter.
13.17 Export Control and Sanctions. Each Party will comply with all applicable export control and economic sanctions Laws in connection with these Terms and its use of the Platform. Each Party represents that it is not, and is not owned or controlled by, a person or entity that is the subject of sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or any comparable Law of another applicable jurisdiction, and is not located in, or ordinarily resident in, a country or territory that is the subject of comprehensive sanctions. A Party will promptly notify the other Party if it becomes aware that this representation is no longer accurate.
13.18 Anti-Corruption. Each Party will comply with all applicable anti-corruption and anti-bribery Laws in connection with these Terms, and will not offer, promise, or provide anything of value to any government official or other person in violation of such Laws for the purpose of obtaining or retaining business or securing any improper advantage in connection with these Terms.
13.19 Non-Solicitation of Personnel. During the Term and for a period of twelve (12) months following its expiration or termination, neither Party will, directly or indirectly, solicit, recruit, hire, or engage as an employee, independent contractor, or consultant any individual who is or was, within the preceding six (6) months, an employee or contractor of the other Party and with whom the soliciting Party had material contact in connection with these Terms, without the prior written consent of the other Party. This restriction does not apply to: (a) individuals who respond to general public advertisements or postings not specifically targeted at employees or contractors of the other Party; (b) individuals whose employment or engagement with the other Party ended more than six (6) months before the solicitation; or (c) individuals who initiate contact with the soliciting Party without any prior solicitation. A Party that breaches this Section 13.19 will pay the other Party, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of the hired individual’s first-year base compensation, which the Parties agree is a reasonable estimate of the damages the non-breaching Party would suffer and which would otherwise be difficult to calculate.
14. Definitions
14.1 “Account” means the unique account established for Advertiser on the Platform. Digital ads may be purchased only through an Account; a Profile does not itself support the purchase of digital ads.
14.2 “Account Type” means whether an Account is a Direct Account, a Managed Account, or a Companion Account, as described in Section 1.1.
14.3 “Admin” means an Authorized User designated within a Party’s Manager View to hold Administrative Permissions on the Party’s behalf, as described in Sections 1.2 and 2.2, including for purposes of receiving notices under Section 13.2.
14.4 “Administrative Permissions” means the authority held by one or more Authorized Users, within the Manager View of a given Account or Profile, over that Account’s or Profile’s administrative functions, including the authority to grant, remove, or manage other Authorized Users’ access and to administer billing settings, as described in Sections 1.2 and 2.2.
14.5 “Advertiser Content” means the advertising content and materials Advertiser provides to Aparagon through its Account, as described in Section 9.1(g).
14.6 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.
14.7 “Agency Content” means the advertising content and materials Agency provides to Aparagon through an Account to which it is connected, as described in Section 9.1(g).
14.8 “Agency Markup” means the percentage-based markup on a Campaign Budget that an Agency may specify for a campaign order, reported within the Billing module of the Manager View of the Party responsible for paying the Fees accrued by the applicable Account, but not billed, collected, or remitted by Aparagon, as described in Section 7.9.
14.9 “Agreement” means these Terms, as accepted by a Party in accordance with Section 4.
14.10 “AI-Assisted Features” means the artificial intelligence and machine learning technology Aparagon may make available within the Platform to assist with campaign bidding and optimization, generate recommendations, and build campaign assets, including creative content, as described in Section 5.5.
14.11 “AI-Generated Creative” means advertising creative content that an AI-Assisted Feature generates for an Account, as described in Section 5.5(a).
14.12 “Amazon Marketing Cloud” or “AMC” means the secure, privacy-first data clean room environment operated by Amazon within Amazon Web Services, as described in Sections 1.3 and 1.5.
14.13 “Aparagon Conversion Events” or “ACE” means the feature described in Section 1.5 through which Aparagon captures conversion events occurring off of Amazon’s own properties and transmits them, on Advertiser’s behalf, to Amazon Ads.
14.14 “Aparagon Insights Engine” means the analytics component of the Platform that processes Client Data to generate performance measurement and reporting, as described in Section 1.3.
14.15 “Aparagon Media Fees” means the variable fee charged by Aparagon for digital ads actually delivered through an Account, based on the applicable campaign order’s parameters and actual ad delivery, as described in Section 7.
14.16 “Authorized User” means any individual granted access to an Account or Profile as described in Section 6.1.
14.17 “Beta Features” means features, tools, integrations, or other functionality that Aparagon designates as “beta,” “preview,” “early access,” “experimental,” or similar terminology, as described in Section 5.7.
14.18 “Billing Agency” means the Agency responsible for a Managed Account’s fees and invoicing, having accepted that role as described in Sections 2.3(a) and 3.1.
14.19 “Campaign Budget” means the total amount an Advertiser, Billing Agency, or Agency (for its own Companion Account) allocates to a campaign order when submitting it through the Platform, from which any Agency Markup, Aparagon Media Fees, and Platform Usage Fees are drawn, as described in Section 7.
14.20 “Client Data” means first-party data collected by Advertiser from its customers and provided to Aparagon to activate the Aparagon Insights Engine or Aparagon Conversion Events.
14.21 “Companion Account” means an Account whose Account Type is Companion, automatically created for Agency as part of the Agency setup process, as described in Section 1.1(c).
14.22 “Confidential Information” has the meaning set forth in Section 11.1.
14.23 “Connected Agency” means an Agency that has been granted access to a Direct Account, a Managed Account, or a Companion Account without controlling that Account or being responsible for its fees, as described in Section 2.3(b).
14.24 “Derivative Works” means works based upon one or more preexisting works, such as a translation, art reproduction, abridgment, condensation, or other form in which a work may be recast, transformed, or adapted, including editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.
14.25 “Direct Account” means an Account whose Account Type is Direct, as described in Sections 1.1 and 7.2(a).
14.26 “Effective Date” means, with respect to Advertiser, the date on which Advertiser becomes bound by these Terms as described in Section 4.2 or 4.3, as applicable; and with respect to Agency, the date on which Agency becomes bound by these Terms as described in Section 4.2.
14.27 “Feedback” means any feedback, suggestions, ideas, enhancement requests, recommendations, or other input regarding the Platform or the Services that Advertiser, Agency, or any Authorized User provides to Aparagon, as described in Section 6.6.
14.28 “Intellectual Property” means any patentable subject matter under 35 U.S.C. § 101 et seq. (whether or not patented or the subject of a pending application), any copyrightable work under the U.S. Copyright Act, 17 U.S.C. § 101 et seq., any trademark, service mark, or other symbol or phrase constituting a trademark under 15 U.S.C. Chapter 22, and any Trade Secret.
14.29 “Law” means all applicable federal, state, and local laws, statutes, regulations, rules, executive orders, ordinances, and binding guidance from regulatory authorities.
14.30 “Managed Account” means an Account whose Account Type is Managed, as described in Sections 2.3 and 2.5.
14.31 “Manager View” means the administrative interface on the Platform through which Advertiser manages its Account or Agency manages its Profile, including designating Admins and Authorized Users and accessing the Billing module described in Section 7.
14.32 “Person” means all individuals and entities of any type or form, including without limitation partnerships, limited liability companies, corporations, and sole proprietorships.
14.33 “Platform” means the Aparagon Marketing Platform, also known as “AMP,” including all of its features, functionality, and components, such as the Aparagon API and the Aparagon Insights Engine.
14.34 “Platform Data” means any data generated through use of the Platform or generated by the Platform itself, including ad reach, audiences, campaign orders, and reporting, but excluding Client Data.
14.35 “Platform Information” means all information provided or delivered by, or accessible on or through, the Platform, including Platform Data, but excluding Client Data and AI-Generated Creative.
14.36 “Platform Usage Fee” means the fee, calculated as a fixed percentage of Aparagon Media Fees, applicable to an Advertiser’s Account or an Agency’s Profile as published from time to time within the Billing module of the applicable Manager View on the Platform, described further in Section 7.
14.37 “Profile” means the organizational profile established for Agency on the Platform to access and manage one or more Advertiser Accounts, as described in Section 2.1.
14.38 “Prohibited Person” has the meaning set forth in Section 8.6(a).
14.39 “Services” means the services made available by Aparagon through the Platform, including the purchase of digital ads through the Platform, use of the Aparagon Insights Engine, use of Aparagon Conversion Events, and use of AI-Assisted Features.
14.40 “Term” means the period commencing on the Effective Date and continuing until terminated as provided in Section 8.
14.41 “Third Party” means any person or entity that is not a Party to this Agreement.
14.42 “Trade Secrets” means any formula, pattern, compilation, program, device, method, process, or technique that provides a benefit to Aparagon from not being generally known or readily ascertainable by others, and that is subject to reasonable efforts to maintain confidentiality.
Additional terms are defined throughout these Terms where they first appear.
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