Updated: July 18, 2017
Customer acknowledges that the Free Version is provided at no charge, and therefore, the terms that govern use of the Free Version are different, in part, from the terms that govern use of the Paid Version. The specific provisions that relate only to the Paid Version are set forth in Sections 6 (Paid Version Payments), 7.1 (Paid Version Limited Warranty), 8.1 (Paid Version Limitation of Liability), and 9.2 (Termination of the Paid Version), and the specific provision that relates only to the Free Version is set forth in Section 8.2 (Free Version Limitation of Liability). All other non-specified terms shall apply to both the Paid Version and Free Version. If Customer upgrades from the Free Version to a Paid Version, Customer acknowledges and agrees that the terms that govern the use of the Paid Version shall automatically apply to Customer upon such upgrade.
CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
“Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information is Medialytics’ Confidential Information.
“Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to the Services.
“Customer Content” means Content contributed to the Services by Customer.
“Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Medialytics in connection with providing the Services.
“Plan” means Medialytics’ free or any paid plans, as applicable and as further described on Medialytics’ website available at: https://medialytics.io/pricing.
“Services” means the services hosted by Medialytics and provided to Customer under this Agreement.
“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
“Updates” means any patch, revision or update to the Services delivered by Medialytics.
Subject to all terms and conditions of this Agreement, Medialytics will use commercially reasonable efforts to provide the Services. Medialytics may provide the Services to Customer directly, or indirectly using contractors or other third party vendors or service providers.
Use of the Services by Customer shall not unreasonably interfere with use of the Services by other Medialytics customers. All Plans have an associated total views limit as specified on the pricing page of the Medialytics website (https://medialytics.io/pricing). Once an account reaches its total views limit You will be notified and given the option of (a) upgrading to a plan with a higher views limit, or (b) paying for extra views at the then current overage rate for your account (unless otherwise previously mutually agreed upon).
2.3 Security Measures
Customer may access the Services as Medialytics instructs through a combination of one or more user names and passwords.
Customer shall take full responsibility and liability for the security of each of its user names and passwords, and shall be solely responsible for all use of the Services through such user names or passwords. Customer agrees to immediately notify Medialytics of any unauthorized use of the Services or any other breach of security known to Customer.
2.5 Prohibited Uses
As a condition of use of the Services, You promise not to use the Services for any purpose that is prohibited by these Terms.
By way of example, and not as a limitation, You shall not upload, submit, distribute, facilitate any of the foregoing, or otherwise use the Services or interact with the Services in a manner that:
- infringes or violates the intellectual property rights or any other rights of any other person or entity (including Medialytics);
- violates any law or regulation;
- is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, pornographic, contains or depicts nudity, or otherwise objectionable, as determined by Medialytics in its sole discretion;
- jeopardizes the security of your Medialytics account or anyone else’s (such as allowing someone else to log in to the Services as you)
- attempts, in any manner, to obtain the password, account, or other security information from any other user;
- violates the security of any computer network, or cracks any passwords or security encryption codes;
- runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- copies or stores any significant portion of the Content;
- decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
- Additionally, You shall not (directly or indirectly) or permit any third party to: (a) use any of Medialytics’ Confidential Information to create any software, documentation or service that is similar to the Services or any documentation provided in connection therewith; (e) modify, translate, or otherwise create derivative works of any part of the Services, (f) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Medialytics. You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Finally, you must be a human. Access to the Services by “bots” or other automated methods is not permitted.
2.6 Changes to Services
Medialytics reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time.
2.7 Changes to Terms
We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the Medialytics website, by sending you an email, and/or by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Medialytics will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other service or equipment failures outside of Medialytics’ facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond Medialytics’ reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
3. Support and Maintenance
Medialytics will use commercially reasonable efforts to provide Customer with support and maintenance services for the Services in accordance with its standard practices (as amended from time to time). Customer agrees that Medialytics will have the right to charge in accordance with its then current policies for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by Medialytics.
Medialytics shall have no obligation to provide Updates, except that Medialytics will provide Customer with any Update that it makes generally available without charge to its similar customers.
4. Proprietary Rights
Except for Customer Content, Medialytics (and its licensors) own all right, title and interest in and to the Services and all modifications, enhancements and Updates to the Services (including all intellectual property and proprietary rights embodied therein). Medialytics reserves all rights not expressly granted hereunder. Customer shall not take any action inconsistent with such rights. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.
4.2 Customer Content
Customer owns all right, title and interest in and to the Customer Content. You hereby grant Medialytics a royalty-free, fully paid-up, irrevocable, worldwide license to exploit the Customer Content as necessary to provide the Services to you. You are responsible for all Customer Content, and you represent and warrant you have all rights necessary to grant the rights in Customer Content set forth in this Agreement.
4.3 Customer Data
As between the parties, Customer shall own all Customer Data. Medialytics shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during and after the term of this Agreement, Medialytics may use Customer Data, as combined with other Medialytics customers’ data, to improve and/or market the Services. Customer hereby grants Medialytics a nonexclusive and royalty-free right and license to use the Customer Data solely for the purposes described above. Customer agrees to create archival copies or backup copies of all Customer Data.
Customer agrees to indemnify and hold Medialytics harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of Customer Data or Customer Content in connection with the provision of Services or to comply with any legal, regulatory or similar requirement or investigation.
Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry, provided that the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
5.2 Compelled Disclosure.
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
5.3 Effect of Termination.
Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Medialytics may retain and use Customer Data, as combined with other Medialytics customers’ data, solely to improve and/or market the Services, even after termination of the provision of Services to You.
6. Paid Version Payments
Customer agrees to pay Medialytics the fees, in the amounts and at the times specified in the selected Plan.
6.2 Credit Card Information.
In order to set up an account with Medialytics, Customer must provide Medialytics with accurate and complete billing information including legal name, address, telephone number, and a valid credit card. Customer’s card will never be charged without its authorization. By submitting such credit card information, Customer gives Medialytics permission to charge all fees incurred through its account to the designated credit card. Medialytics reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if Customer does not provide a valid credit card for the payment of fees hereunder.
6.3 Payment Terms.
The Services are billed in advance on a monthly or annual basis, depending upon which payment plan is chosen by Customer. Medialytics will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account. For any Services upgrade, the additional fee for the Services upgrade for the remainder of the current term (i.e. either month or year) will automatically be charged to the Customer’s credit card at the time of the upgrade. All future recurring charges for the Services will follow the monthly or annual billing cycle (as chosen by the Customer).
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, excluding taxes based upon Medialytics’ net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
7. Limited Warranty and Disclaimers
7.1 Paid Version Limited Warranty.
Medialytics warrants that it will provide the Paid Version in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Paid Version may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Medialytics to repair, maintain or upgrade the Paid Version or for causes beyond Medialytics’ reasonable control. Medialytics will notify Customer at least 48 hours in advance of any known planned Paid Version-related outages.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. MEDIALYTICS DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, MEDIALYTICS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8. Limitation of Liability
8.1 Paid Version Limitation of Liability.
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 2.5 (PROHIBITED USES) OR SECTION 6.1 (FEES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO MEDIALYTICS HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.2 Free Version Limitation of Liability.
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL MEDIALYTICS BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES IN EXCESS OF $100.00 IN THE AGGREGATE, EVEN IF MEDIALYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. Term and Termination
This Agreement shall commence on the date that this Agreement is accepted. With respect to a Paid Version user, this Agreement shall continue in effect for the initial term specified in the Plan (or if no such term is specified, then for the length of your billing cycle), unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such initial term, the Agreement will be extended automatically for additional terms equivalent to your billing cycle (i.e. 1-month terms or 1-year terms, as applicable), unless your Plan says otherwise or this Agreement is terminated earlier as permitted in this Section 9.1 or in Section 9.2. Either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least 1 month prior to the end of the then current initial or renewal term. Customer is solely responsible for properly notifying Medialytics of its election not to have this Agreement automatically renew by following the cancellation directions available in Customer’s Medialytics account. With respect to a Free Version user, this Agreement shall continue in effect until either party terminates this Agreement upon at least 5 business days’ written notice to the other party.
9.2 Termination of the Paid Version.
With respect to the Paid Version, this Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
9.3 Effects of Termination.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, (b) Medialytics may, but shall not be obligated to, delete archived Customer Data and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Paid Version Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive.
10. General Provisions
10.1 Third Party Sites
10.2 Entire Agreement
10.3 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts having jurisdiction over Medialytics’ offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Except as otherwise provided in Sections 9.1, any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10.7 Independent Contractors
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Neither party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.