Terms Of Service
Effective: September 1, 2015
The following ShareIQ [GmbH] (“Company”) terms and conditions (“Terms and Conditions”), together with the Order Form referencing the Services (as defined in Section 10) to be made available by Company to the entity identified on the Order Form (“Subscriber”), constitute a complete agreement (“Agreement”) between Company and Subscriber. Capitalized terms are generally defined in Section 10.
- License Grant. Subject to the terms and conditions of this Agreement, Company grants to Subscriber a non-exclusive, non-transferable license, during the term of this Agreement, solely for Subscriber’s internal business purposes (a) to access and use the Services [and in accordance with the | Documentation]; and (b) to reproduce and use the Raw Data.
- Authorized Recipients. Subscriber may permit any Authorized Recipient to access, reproduce and use the Raw Data for its internal business purposes, and not for further resale or distribution. Before allowing any Authorized Recipient to access any Raw Data, Subscriber will enter into a binding written agreement with such Authorized Recipient that protects Company’s rights and interests to at least the same degree as this Agreement, including Section 1.3. Upon the expiration or termination of this Agreement, Subscriber will, and will cause each Authorized Recipient, to return or destroy (permanently delete) all Raw Data (excluding Insights) in its, and each of its Authorized Recipient’s, control or possession.
- Limitations. The Company Property, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. Subscriber agrees that it will not, and will not permit any Authorized Recipient or other party to: (a) permit any party to access the Raw Data or Documentation or use the Services, other than the Authorized Recipients authorized under this Agreement; (b) modify, adapt, alter or translate the Company Property, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Raw Data or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services or Raw Data; (e) use or copy the Raw Data or Documentation except as expressly allowed under this subsection; (f) disclose or transmit any data contained in the Raw Data to any individual other than a Authorized Recipient, except as expressly allowed herein; or (g) unless otherwise agreed, incorporated any part of the Raw Data into any product or service of Subscriber or any Authorized Recipient, or any other product or service. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Company Property or any part thereof.
Fees and Expenses; payments
- Fees. In consideration for the access rights granted to Subscriber and the services performed by Company under this Agreement, Subscriber will pay to Company all fees set forth on the particular Order Form. Company will automatically renew and bill Subscriber periodically in accordance with the Order Form. If Subscriber provides credit card information to Company, Subscriber authorizes Company to charge such credit card for all services listed on the Order Form for the initial subscription term, and any renewal subscriber term(s), and any recurring fees and charges set forth therein. In the event that Subscriber wishes to add additional Authorized Recipients beyond those named Authorized Recipients for which fees have been paid, Subscriber shall be required to pay additional fees associated with the increased number of Authorized Recipients, prorated for the remainder of the term.
- Payment Terms. All payment obligations are non-cancellable and all amounts paid are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Company shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. Company’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Company’s income. Subscriber agrees to provide Company with complete and accurate billing information and contact information. This information includes Subscriber’s legal name, street address, email address and name and telephone number of an authorized billing contact and license administrator. Subscriber agrees to update this information within thirty (30) days of any change to it. If the contact information Subscriber has provided is false or fraudulent, Company may terminate Subscriber’s access to the Services in addition to other legal remedies.
- Ownership. As between Company and Subscriber, the Company Property and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Company Property not expressly granted to Subscriber in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Company Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
- License by Subscriber. Subscriber grants Company a non-exclusive, worldwide, royalty-free and fully paid license to use the Subscriber Content as necessary for purposes of providing the Services. The Subscriber Content hosted by Company as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Subscriber. All rights in and to the Subscriber Content not expressly granted to Company in this Agreement are reserved by Subscriber.
- Limited Warranty. Company warrants to Subscriber that the Services will operate free from Errors during the term of the Agreement. Provided that Subscriber notifies Company in writing of any breach of the foregoing warranty during the term hereof, Company shall, at Subscriber’s election and as its sole and exclusive remedy provide the support services in accordance with Company’s standard support and maintenance policies. This warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary from jurisdiction to jurisdiction.]
- By Subscriber. Subscriber represents and warrant to Company that (a) Subscriber has the authority to enter into this agreement personally (if Subscriber is an natural person), or on behalf of the entity entering into this agreement, and to bind that entity, and (b) that any Subscriber Content provided to Company for hosting by Company as part of the Services, shall not (i) infringe any copyright, trademark, or patent; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; or (v) otherwise violate the rights of a third party. Company is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense. Subscriber agrees that any use of the Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the Services.
- Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RAW DATA, Documentation, AND SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE RAW DATA, Documentation, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY COMPANY. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
Limitation of Liability
- Types of Damages. EXCLUDING CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, OR BREACHES OF CONFIDENTIALITY, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ITS SUPPLIERS, FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE Software, Documentation, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
- Amount of Damages. EXCLUDING BREACHES OF CONFIDENTIALITY, THE MAXIMUM LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IF THE AGREEMENT HAS BEEN IN EFFECT ONE YEAR OR MORE. IN NO EVENT SHALL Company’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information, which the Receiving Party knew or should have reasonably known under the circumstances, was the confidential or proprietary information of the Disclosing Party (collectively, “Confidential Information”). The Raw Data, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Recipients (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- System Use Information. Company may use and disclose, in its discretion, any aggregated and de-identified information regarding Subscriber’s use of the Services. Any disclosure of such information will not identify Subscriber or any specific use by Subscriber.
- By Company. Company will (1) defend, or at its option settle, any suit filed by a third party against Subscriber (a “Suit”) to the extent such Suit claims that Subscriber’s use of the Services or Documentation as permitted in this Agreement constitutes Subscriber’s infringement or misappropriation by Subscriber of a third party’s intellectual property rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agree to by Company in a monetary settlement of such Suit. If any portion of the Services or Documentation becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Subscriber the right to continue using the Services or Documentation; (b) replace the Services or Documentation with non-infringing software or services which do not materially impair the functionality of the Services or Documentation; (c) modify the Services or Documentation so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber to Company for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of
the Raw Data, Documentation, and Services. Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, software or data not supplied by Company; or (z) any modification of the Services or Documentation by any person other than Company or its authorized agents. This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives
of the foregoing, for infringement claims and actions.
- By Subscriber. Subscriber will defend at its expense any suit brought against Company, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Subscriber’s breach or alleged breach of any of Subscriber’s representations or warranties herein.
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
Term and Termination
- Term. This Agreement shall commence as of the effective date set forth in the initial order form and remains in effective for a period of one (1) year, unless earlier terminated as set forth below. This Agreement shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.
- Termination. Company may cancel, suspend or block Subscriber’s use of the Company Property without notice if there has been a breach of this Agreement by Subscriber. Subscriber’s right to use the Company Property will end once Subscriber’s Account has been terminated, and any data that Subscriber may have stored on the Services, including Subscriber Content, may be unavailable later, unless Company is required to retain it by law. Company is not responsible or liable for any records or information that is made unavailable to Subscriber as a result of Subscriber’s termination of its Account. SUBSCRIBER AGREES THAT COMPANY WILL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY TERMINATION OF SUBSCRIBER’S ACCESS TO THE COMPANY PROPERTY. Subscriber’s payment obligations and Sections 1.3, 3.1, 4.3, and 5-10 shall survive the termination of this Agreement.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of [New York], without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against Subscriber by Company arising from or related to this Agreement. Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Raw Data, Documentation, or Services hereunder.
(a) Subscriber agrees 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.
(b) Subscriber agrees not to transfer any data acquired from Company (including anonymous, aggregate, or derived data) to any ad network, data broker, influencer network, or other advertising or monetization-related service.
- Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- General. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Subscriber acknowledges that the Services, and Documentation contain valuable trade secrets and proprietary information of Company, that any actual or threatened breach of the section titled Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Company, including with respect to Raw Data, may constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy. Subscriber shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Company, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will
be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Subscriber’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Company. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the Company.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Authorized Recipient” means any entity as may be authorized by an Order Form, to access one or more Raw Data sets pursuant to Subscriber’s rights under this Agreement.
- “Company Property” means the Services, Raw Data, Documentation, and all systems, networks, APIs, websites or other materials that are either owned or operated by Company, or provided to Subscriber in connection with this Agreement.
- “Documentation” means the technical materials provided by Company to Subscriber in hard copy or electronic form describing the use and operation of the Software.
- “Error” means a reproducible failure of the Services to substantially conform to the Documentation.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights;
(d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations,
applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Insights” means those conclusions, understandings, perceptions, deductions, residual knowledge, traits and characteristics derived by Subscriber or any Authorized Recipient from Raw Data. For the purposes of clarity, Insights do not include Raw Data
or any modifications or derivative works thereof.
- “Order Form” means a document, either physical or electronic, signed by both parties identifying a Service to be made available by Company pursuant to this Agreement.
- “Raw Data” means any primary data collected by Company related to image use, distribution, sharing and dissemination that has not been manipulated or otherwise processed by Company.
- “Subscriber Content” means any content submitted to Company by Subscriber via the Service.
- “Services means certain technology and materials of Company that [enables users to collect and analyze data related to the use and distribution of selected images across the Internet] (including all updates completed by or authorized by Company during
the Term) provided by Company to Subscriber under this Agreement.