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Terms and Conditions

1. SERVICES AND APPLICABILITY OF TERMS AND CONDITIONS.

Billups, LLC and its affiliates (altogether, “Billups”) offers a proprietary suite of digital products and services for media owners, agencies, partners, and advertisers – an unrivaled collection of tools for the OOH and DOOH industry (“Services”). These terms and conditions (“Terms and Conditions”) (together with any subscription agreement (“Subscription Agreement”) incorporating by reference these Terms and Conditions and any service-level agreement incorporating by reference a Subscription Agreement altogether referred to as an “Agreement”) shall provide the terms for any future business between Billups and the customer receiving services pursuant to a Subscription Agreement (“Customer”).

2. CONFIDENTIALITY.

Proprietary information of the parties and communications between the parties that are not otherwise publicly available, including without limitation any Subscription Agreement, contracts and rates, and any performance data, are “Confidential Information.” Confidential Information does not include information that: (a) when disclosed to the recipient, is in the public domain; (b) after disclosure to the recipient, becomes part of the public domain through no fault of the recipient; (c) the recipient can show by written documentation was lawfully in its possession at the time of disclosure and had not been acquired, directly or indirectly, from the discloser; (d) is later furnished or made known to the recipient by a third party as a matter of right and without restriction on disclosure; or (e) is required to be disclosed by court order or other legal process binding on the recipient, in which case the recipient shall promptly notify the discloser of such requirements so that it may take steps (with recipient’s reasonable cooperation) to obtain a protective order. The parties agree that Confidential Information has significant strategic value and will only be used as intended under the Agreement. Each party shall exercise reasonable care in safeguarding Confidential Information. All restrictive covenants contained in this section are reasonable and necessary to protect the legitimate business interest of each party, and any losses arising from a party’s breach of this section cannot reasonably and adequately be compensated by monetary damages and may cause the injured party irreparable harm; accordingly on the failure of either party to comply with the restrictive covenants in this section, the injured party will be entitled to seek injunctive or other equitable relief in addition to monetary damages. Notwithstanding the foregoing, unless otherwise agreed to, Billups may identify Customer as its customer, and use publicly available images, video, and other content in promotional materials. This section will survive the termination of this Agreement for so long as either party retains Confidential Information of the other.

3. INTELLECTUAL PROPERTY.

(a) In addition to any other license granted to Billups pursuant to an Agreement, Customer agrees to grant to Billups a nonexclusive, nontransferable, revocable, limited, sub-licensable license to use the applicable Customer trade and service marks as provided by Customer to Billups solely for performance of the Services or otherwise reasonably related to the performance of this Agreement. (b) Customer’s use of Services must be in compliance with the license granted by Billups in an applicable Service-Level Agreement or Subscription Agreement. (c) Customer will not: (i) directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services; (ii) modify, translate , or create derivative works based on the Services or software utilized to perform the Services except as expressly permitted by an Agreement; or (iii) use the Services or software utilized to perform the Services for the benefit of a third party; or (iv) remove any proprietary notices or labels. (d) Billups may solicit, or Customer, including its users, may volunteer recommendations, feedback, comments, surveys or other content intended to improve the Services or software utilized in performing the Services, including (without limitation) any services which include custom requirements (“Feedback”). Customer grants all rights, title and ownership, including moral rights, to Billups for any Feedback and any new features, application improvements, or other changes to an application that result from such Feedback (including application improvements, all such improvements are “Improvements”). In the event that Customer cannot grant all rights, title and ownership, including moral rights, in the Feedback and Improvements to Billups, Customer hereby grants Billups a global, perpetual, royalty-free, fully paid-up license to employ, modify, distribute, and otherwise use Improvements, currently and in the future, including in any software, service, or other products that are provided to other customers. Customer shall provide all necessary assistance to enable Billups to license such improvements, and shall execute any writing necessary to ensure that the license described in this Section 3 remains in full force and effect at all times. (e) Customer grants Billups a nonexclusive, nontransferable, revocable, limited, sub-licensable license to use any Customer content submitted by Customer in any manner deemed necessary by Billups in its discretion for the purpose of providing the Services, and such license includes (and Customer is responsible for obtaining and paying for) all licenses, permissions, rights, clearances and associated royalties that are required to use any underlying and third party content (including without limitation musical compositions and sound recordings) that is incorporated in, synchronized with or otherwise forms part of any Customer content. (f) by submitting such Customer data to Billups’ platform, Customer grants Billups a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Customer data in connection with the Services and Billups’ (and its successors' and affiliates') business, including without limitation for redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. (g) Notwithstanding anything to the contrary in these Terms and Conditions, Billups shall exclusively retain all right, title, and interest (except to the extent owned by a third party) in any intellectual property used in the general conduct of Billups’ business, including any software or other intellectual property which may be improved in the course of performing the Services.



4. REPRESENTATIONS, WARRANTIES, AND COVENANTS; DISCLAIMER.  

(a) Customer (i) covenants that if necessary for Billups to perform the Services, it will provide accurate and complete information concerning its products and services; (ii) covenants that it will only provide work product, Customer content, and third-party intellectual property to Billups for which it has all releases, licenses, permits or other rights necessary or convenient for use by Billups in performing Services; (iii) acknowledges that it shall provide reasonable access to such materials as are reasonably necessary for the performance of the Services, whether such materials are owned by Customer or a third party; (iv) acknowledges that the Services and any other items provided by Customer under an Agreement are not exclusive to Customer and that Billups shall have the right to provide Services to other parties, including, without limitation, any competitor of Customer; (v) acknowledges that the Services, software and any items provided by Billups under an Agreement are the sole property of Billups, and Billups shall retain sole title to the same including without limitation upon termination of an Agreement; acknowledges that Billups has the sole right for maintaining the systems used for providing the Services and that Billups may, in its sole discretion, make changes, updates, and modifications to such systems, including without limitation, adding or removing features, but that Billups is under no obligation whatsoever to do so; (vi) acknowledges that Customer is fully responsible for inspecting and approving all content submitted by advertisers or Billups to be published on an advertising space, and further agrees that Company shall have no obligation to perform any such inspection or to approve any content from advertisers; (vii) agrees that no advertiser content may be placed without Customer’s prior review and approval, and that Customer shall perform such review in a timely and diligent matter; (viii) represents, covenants, and warrants that Customer will use the Services only in compliance with these Terms and Conditions, as amended, and all applicable laws and regulations, and, to the extent that the use of the Services involves the use of software owned by third parties, will use the Services only in compliance with the terms required by such third party; (ix) acknowledges that although Billups has no obligation to monitor Customer’s use of the Services, Billups may do so and may prohibit any use of Services it believes (or are alleged to be) may be in violation of the foregoing; (x) represents and warrants that entering into or performing under an Agreement will not violate any agreement the Customer has with a third party or any third-party rights; (xi) represents and warrants that all of the information provided by Customer is correct and current to the best of Customer’s knowledge; (xii) acknowledges that Billups may reject and/ or remove any materials for the use of explicit content or otherwise fail to comply with Billups’ policies regarding advertisements, and such other reasons as may be determined by Billups in its discretion; (xiii) agrees that Billups shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with, the use of or reliance on any third party content (including, without limitation, harm caused or alleged to be caused by reliance on information linked to on a third party’s website); (xiv) will use its best efforts to ensure that no computer viruses, malware, or similar items (collectively, the “Virus”) are introduced into Billups’ computer and network environment while availing itself of the Services, and that, regardless of Customer’s efforts, where Customer transfers such Virus to Billups through its use of the Services, Customer shall reimburse Billups the actual cost incurred by Billups to remove or recover from the Virus; (xv) represents warrants that it is a business duly incorporated or formed, validly existing, and in good standing under the laws of its state of incorporation/formation; (xvi) represents and warrants that it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under an Agreement; (xvii) represents and warrants that an Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms; (xviii) represents and warrants that the execution, delivery, and performance of an Agreement has been duly authorized by it and an Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; (xix) represents and warrants that there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under an Agreement; and (xx) acknowledges and agrees that Billups cannot ensure or warrant the security of any information Customer transmits to Billups or receives from Billups. (b) Customer and Billups covenant that they shall adhere to the standard representations regarding the Foreign Corrupt Practices Act and similar laws, the European Union’s General Data Protection Regulation to the extent such compliance is required by law, and requirements regarding the use of data, available at http://billups.com/standard-representations/ (altogether the “Standard Representations”), and acknowledges that a breach of any of the Standard Representations shall constitute a material breach of this Agreement. Each party acknowledges that Billups in its discretion has the authority to modify the Standard Representations from time to time. (c) THE SERVICES AND IMPLEMENTATION AND ANY IMPLEMENTATION OF THE SERVICES ARE PROVIDED “AS IS,” AND BILLUPS DISCLAIMS, AND THESE TERMS AND CONDITIONS EXPRESSLY EXCLUDE, ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION: (i) THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY WARRANTY THAT SERVICES OR SOFTWARE UTILIZED IN PROVIDING THE SERVICES IS ERROR-FREE, FAULT-TOLERANT, OR FAIL-SAFE, WILL OPERATE WITHOUT INTERRUPTION, IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, OR THAT ALL NON-CONFORMITIES CAN OR WILL BE CORRECTED; AND (iii) ANY WARRANTY OF NONINTERFERENCE, SYSTEM INTEGRATION, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

5. PAYMENT TERMS.

Customer will compensate Billups at the agreed upon rate for services, unless otherwise specified. Payment is due within 30 days of the receipt of an invoice. Billups may charge Customer interest on overdue accounts that are not in dispute at a rate of one (1) percent over the current prime lending rate quoted by the Wall Street Journal on the date the account became overdue. Notwithstanding the foregoing, upon the expiration or termination of an Agreement for any reason, Customer shall pay to Billups all amounts due and payable thereunder up to the date of such expiration or earlier termination. Billups may suspend or terminate Services due to nonpayment or repeated late payment. Billups may offset Customer account credits, amounts already received from Customer, or amounts due to Customer, if any, against amounts due to Billups under an Agreement. Billups may, at its discretion, initiate collection efforts upon any overdue account. Customer agrees to pay all reasonable attorney fees and costs incurred by Billups in any such collection action. If Customer is seeking to place advertising with a media owner through the Services, Customer will be solely responsible for all charges, expenses and costs arising out of all contracts and/or schedules with media owners, except and only to the extent that Billups has actually received full payment from Customer for such charges, expenses and costs, and Customer further acknowledges that Customer may be held directly liable to media owners and other third parties. If Customer is a media owner: (a) Customer agrees and stipulates that Billups will only be liable for payments solely to the extent proceeds have properly cleared from an advertiser’s account to Billups account(s), in accordance with Billups procedures and processes, for advertising space ordered in accordance with Billups’ agreement with advertiser, and only if such proceeds are not in dispute; (b) For sums not cleared to Billups in the manner set forth above, or sums cleared but in dispute, Customer agrees and stipulates that advertiser will be held solely liable for such sums; (c) In the event Billups makes payment to Customer and advertiser defaults on any payment to Billups, Customer is required to return the payments made by Billups to Customer, to the extent Billups has not been paid by advertiser, within thirty days of a written demand by Billups (the “Clawback Demand”). In the event of a Clawback Demand, Customer’s sole recourse shall be solely against advertiser. All fees, charges, deposits, and payments shall be paid in United States Dollars (USD). Customer shall be responsible for and shall pay to Billups the fees as further described in future agreements, subject to the terms and conditions contained therein.

6. ACCOUNT AND USER ID.

In order to access or use the Services, Customer may be required to open an account (the “Account”). Customer’s access to and use of the Account is subject to Billups’ approval, and Billups has the right, to be exercised in Billups’ sole discretion, to refuse or limit Customer’s access to the Account. Customer must provide accurate, current and complete information as prompted through the registration process to receive an Account. By submitting an application to use the Account, Customer represents and warrants that the information Customer provides is true and correct. While registering for Customer’s Account, Customer will be required to choose a username for the Account and a password that conforms to the password strength requirements of the Account page (collectively, Customer’s “User ID”). Customer must maintain the confidentiality of Customer’s User ID. Customer will not be permitted to and will not permit any other person to: (i) access or use the Account, other than Customer’s employees who have a need to use it and to other personnel approved by Billups or (ii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Account to any other person. Customer is entirely responsible for all activities that occur on Customer’s Account. Customer agrees to notify Billups immediately of any misuse of Customer’s Account or any security breach of which Customer becomes aware. Customer is responsible for the accuracy, quality and legality of its data, including the data of third parties which Customer adds to the Services, and the means by which Customer acquired such data. Customer agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Billups promptly of any such unauthorized access or use. Customer agrees to use the Services only in accordance with the Agreement and applicable laws and government regulations. Customer agrees not to give or make available its username or password or other means to access its account to any unauthorized individuals. Customer remains responsible for all access to the Services via Customer’s username and password, even if not authorized by Customer.

 

7. TERM/TERMINATION.

A Service-Level Agreement will otherwise remain in effect for a period of three years from the effective date, automatically renewing annually for a period of twelve (12) months, thereafter.   Except as otherwise stated in a Service-Level Agreement, either party may terminate an Agreement or a Service-Level Agreement for any reason by giving at least sixty (60) days prior written notice to the other party prior to the end of a term, in which case the termination shall be effective as of the date that would have been the first day of the next renewal term. Such notice will specify the date on which the Agreement is to be terminated (the “Termination Date”).  To the extent that there is an active, guaranteed-delivery campaign running, the Termination Date shall automatically be extended up until the date when such guaranteed-delivery campaign is complete and no new campaigns are contracted to begin.  Customer will remain responsible for payment for all Services provided through the Termination Date.  Customer will also remain responsible for payment of any expenses or fees provided to the extent an Agreement requires their provision beyond the Termination Date, so long as such Services arranged and agreed upon prior to the Termination Date. Notwithstanding the foregoing, an Agreement shall terminate immediately upon the date on which Customer files a petition in bankruptcy or takes similar action under other laws, is adjudicated a bankrupt or declared insolvent, makes an assignment for the benefit of its creditors, admits its inability to pay its debts as they become due, consents to the appointment of a receiver, or on the ninetieth (90th) day following the filing by a third party of a petition in bankruptcy or for reorganization of a party if such filing is not dismissed or contested.  


In addition to the termination provisions in this clause, if (i) Customer has failed to pay Billups any amount not disputed in good faith owed under an Agreement in a timely manner or (ii) Billups believes in good faith that the (a) Customer has committed fraud or made a misrepresentation with respect to entering into or performing an Agreement or (b) Customer or any of its owners, directors, officers, employees, or anyone acting on its behalf has breached Section 2, Section 3, Section 4, or Section 6, Billups may terminate an Agreement with immediate effect.  Billups shall not be liable for any claims, losses or damages arising from or related to such conduct or any failure to comply with an Agreement or related to the termination of an Agreement under this clause.  Customer will indemnify, defend, and hold Billups harmless against any such claims, losses, or damages. 

8. INDEMNIFICATION.

(a) Customer will indemnify, defend and hold Billups harmless from any and all claims, suits, actions, liabilities, expenses and costs (including attorneys’ fees), brought, made or recovered by any person or entity against Billups, its employees, directors or affiliates (i) for payment in connection with the Services (regardless of any cancellations); (ii) involving or relating to the content of OOH, DOOH, or other advertisements, including without limitation charges of false advertising, libel, or infringement of third party rights; (iii) arising from Customer’s negligence or intentional conduct; or (iv) otherwise arising out of or in connection with the Customer’s material breach of an Agreement. (b) Billups will not be responsible should materials be lost, damaged, or destroyed while in possession of Billups or a third party appointed by Billups.

9. LIMITATION OF LIABILITY.

EXCEPT AS EXPRESSLY PROVIDED IN AN AGREEMENT, IN NO EVENT SHALL BILLUPS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT BILLUPS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

10. FORCE MAJEURE.

Excluding payment obligations, Billups will be excused from performing obligations contained in an Agreement while such performance is prevented by an act of God, fire, flood, earthquake, transportation disruption, war, insurrection, labor dispute, or any other occurrence beyond the reasonable control of that party.

11. GENERAL.

(a) These Terms and Conditions and any Agreement will be governed by and construed in accordance with the laws of the State of Oregon, United States of America, without reference to conflicts of law principles. (b) Any and all disputes relating to this Agreement, or breach hereof shall be resolved in arbitration, except any action initiated by Billups to collect upon any overdue or outstanding invoices, or any other amount owed under this Agreement (“Collection Action”), which shall be litigated in any State or United States District Court in Oregon. For any arbitration, the parties agree to utilize the services of the Arbitration Service of Portland (“ASP”) in Portland, Oregon, and shall arbitrate disputes according to the current rules of the ASP. For any Collection Action, the parties agree that the prevailing party shall be entitled to collect its reasonable attorneys’ fees, expert fees, costs, and disbursements. For any dispute under an Agreement including any Collection Action the parties expressly consent to jurisdiction and venue in the State of Oregon. (c) An Agreement contains the entire agreement between the parties relating to the Services and supersedes any previous agreements or understanding, whether written or oral. (d) Except as otherwise stated herein, any amendment, modification, or waiver to an Agreement must be made in writing, signed by both parties, and make express reference to an Agreement. (e) Notwithstanding the foregoing, these Terms and Conditions may be updated by Billups from time to time in its sole discretion. (f) If any provision of an Agreement is held to be invalid, illegal or unenforceable, the remaining provisions of an Agreement will remain in full force and effect. (g) Each Subscription Agreement and Service-Level Agreement may be executed in multiple parts, or executed digitally. (h) Customer shall not assign or subcontract any of its respective right, title, or interest hereunder without the prior written consent of Billups. Billups may withhold its consent to any assignment if the assignment is to a party Billups reasonably believes is a competitor of Billups or if Billups reasonably believes that the assignment will harm Billups, economically or otherwise. To the extent not prohibited, the covenants, terms, provisions, and conditions herein contained shall apply to, bind, and inure to the benefit of the respective successors and assigns of Billups and Customer. (i) Any provision of these Terms and Conditions that by its nature provides for rights, obligations or remedies extending beyond such expiration or termination, shall survive any expiration or termination of an Agreement. (j) In the event of a conflict between a Subscription Agreement and these Terms and Conditions, the Subscription Agreement shall control. (k) In the event of a conflict between a Subscription Agreement and either a Service-Level Agreement or these Terms and Conditions, the Subscription Agreement shall control. (l) In the event of a conflict between these Terms and Conditions and any agreement for services between Customer and Billups apart from the Services (for example, without limitation, data services or full-service media planning and placement), the terms of such other agreement will control.