Terms of Services
Last revised on: May 1st, 2021
These Terms of Services govern the websites located at app.simulmedia.com and platform.simulmedia.com ("Sites or Sitess, collectively") wherein Simulmedia makes its Simulmedia Advertising Services available (the "Servicess") are a copyrighted works belonging to Simulmedia, Inc. ("Simulmedia", "Company", "us", "our", and "we"). Certain features of the Sitess or Servicess may be subject to additional guidelines, terms, or rules, which will be posted on the Sitess in connection with such features or in additional written contracts and unless specifically stated herein the Terms of Servicess apply to both Sitess listed above. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS OF SERVICES ("TERMS") SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITES AND OUR SERVICES. BY ACCESSING THE SITES OR USING THE SERVICES, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF AND/OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF AND/OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS THE SITESS OR USE THE SERVICESS OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS THE SITES AND/OR USE THE SERVICES.
1.1 Account Creation. In order to use certain features of the Services, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Sites. Company may suspend or terminate your Account in its sole discretion.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Account Representation. When creating an account, You represent that you are authorized to work on behalf of the company that you have identified. You also represent that you are able and authorized to work on behalf of the companies/service/products related to the creatives that you wish to display.
2. Access to the Sites and use of the Services
2.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use the Services and access the Sites solely as described herein. You agree to access the Sites solely to use the Services. We reserve the right to monitor your access and use of the Sites and/or Services. The Services is defined as follows:
2.1 (a) app.simulmedia.com and platform.simulmedia.com
This access permits a user to configure and submit a request for proposal for or a streaming video advertising campaign. The request includes parameters for campaign objective, schedule, audience targets, creative video uploads, and a budget amount. when using app.simulmedia.com, Simulmedia will generate a plan proposal and notify the user of its availability and output location. The user may also facilitate the campaign execution process by providing feedback on the proposal, uploading creatives and establishing event integrations. Once a campaign is approved for execution, users can view their campaign performance reports in app.simulmedia.com When using platform.simulmedia.com and we have confirmation of a valid credit card, Simulmedia will generate a plan to execute the requested campaign within the stated parameters. Simulmedia retains the sole right to execute and optimize the campaign in the manner that Simulmedia deems appropriate in order to achieve the stated parameters. Access also permits a user to view the performance results of the campaign within the platform.simulmedia.com Sites.
3. Certain Restrictions
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Sites or Services, whether in whole or in part, or any content displayed on the Sites or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Sites or Services; (c) you shall not access the Sites or use the Services in order to build a similar or competitive website, product, or Services; and (d) except as expressly stated herein, no part of the Sites or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Sites shall be subject to these Terms. All copyright and other proprietary notices on the Sites (or on any content displayed on the Sites or Services) must be retained on all copies thereof. Company has not agreed to and does not agree to treat as confidential any suggestion or idea provided by You (any ‘Feedback’), and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to You.
When using app.simulmedia.com before you can start running the advertisements and use the features of the Service, you have to get advertisement approval from us. When using platform.simulmedia.com before executing on campaigns that have been submitted on the Site, we reserve the right to check users’ ads and verify if they meet current ads requirements. You should make sure the ad strictly corresponds to the requirements specified for it, as well as that it meets necessary requirements and comply with the basic policies of IAB in order to increase the chances for successful ad approval.
Company reserves the right, at any time, to modify, suspend, or discontinue the Sites and/or Services or your access (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Sites or Services or any part thereof. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR USE OF THE SERVICES. YOUR CONTINUED USE OF THIS SITES OR SERVICES FOLLOWING A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
5. Support or Maintenance.
You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Sites or Services. The Company may, upon request, provide technical support in its sole discretion to enable operation of the Services.
You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets and other proprietary rights, in the Sites or Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Sites or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
7.1 Company will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the Sites or Services infringe on any U.S. intellectual property right of a third party; provided, however, that Company is notified in writing of such claim promptly after such claim is made upon Customer. Company shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without Company's prior written approval. Company shall have no liability or obligation if the claim arises from (i) any alteration or modification to the Sites or Services other than by Company, (ii) any combination of the Sites or Services by Customer with other programs or data not furnished by Company, or (iii) any use by Customer of the Sites or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the Sites or Services are intended.
7.2 If any party is enjoined from using the Sites or Services, or if Company believes that the Sites or Services may become the subject of a claim of intellectual property infringement, Company, at its option and expense, may:(i) procure the right for Customer to continue to use the Sites and/or Services; (ii) replace or modify the Sites and/or Services so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided herein; or (iii) terminate this Agreement. This Section and the preceding Section sets forth the entire liability of Company to Customer for any infringement by the Sites and/or Services or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open-source software.
7.3 You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Sites or Services, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Sites or Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITES AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10. Limitation on Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITES OR SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11. Term and Termination.
Subject to this Section, these Terms will remain in full force and effect while you use the Sites or Services. We may suspend or terminate your rights to use the Sites or Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Sites or Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Sites or Services will terminate immediately. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 1.2,3, 6, 8 9, 10, and 12.
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by prominently posting notice of the changes on our Sites. Any changes to these Terms will be effective immediately upon notice. Continued use of our Sites or Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
14.1 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A JURY TRIAL.
14.2 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
14.3 Confidentiality. The parties agree to maintain confidentiality unless otherwise required by law. Further, you agree that all non-public information that we provide regarding the Sites and/or Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights under these Terms. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
14.4 Severability. If any part or parts of these Terms are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Terms shall continue in full force and effect.
14.5 Assignment. Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Results' prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
14.6 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court.
14.7 Courts. The parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
14.8 Export. The Sites may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
14.9 Disclosures. Company is located at the address in Section 14.15. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.10 Electronic Communications. The communications between you and Company use electronic means, whether you use the Sites or Services or send us emails, or whether Company posts notices on the Sites or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it be in a hard copy writing. The foregoing does not affect your non-waivable rights.
14.11 Force Majeure. As a supplementary part to Services disclaimer stated above, the Company gives no operational guarantees in case of delay caused by force-majeure.
We will not be liable for delays, failure in performance or interruption of the Websites which result directly or indirectly from any cause or condition beyond our reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, acts of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet Services or network provider Services, failure of equipment and / or software, pandemic or national or world wide health emergency, other catastrophes or any other occurrence which is beyond our reasonable control and will not affect the validity and enforceability of any remaining provisions.
We will not be liable for delays, failure in performance or interruption of the Websites which result directly or indirectly from any cause or condition beyond our reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, acts of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet Services or network provider Services, failure of equipment and / or software, pandemic or national or worldwide health emergency, other catastrophes or any other occurrence which is beyond our reasonable control and will not affect the validity and enforceability of any remaining provisions.
14.12 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Sites or Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
14.14 Copyright/Trademark Information. Copyright © 2021 Simulmedia, Inc. All rights reserved. All trademarks, logos and Services marks (Marks) displayed on the Sites are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent of such third party which may own the Marks.
14.15 Contact Information:
Address: 401 Park Avenue South,
New York, New York 10016