TrackMaven, Inc. Terms and Conditions from December 12, 2014 – October 16, 2015

Prior versions of our Terms and Conditions may be found at our Terms Archive.

Digital Analytics Subscription Services

Terms and Conditions

1. DEFINITIONS

1.1. “Agreement” means TrackMaven’s Digital Analytics Subscription Services Agreement which incorporates these Terms and Conditions, the Order Form, and any additional or Customer Specific Terms attached thereto.

1.2. “Analyzed Data” means the Data, once analyzed by the Service, together with any related visualizations, Analyzed Data, and alerts generated by the Service and made available to Customer via the TrackMaven Platform.

1.3. “Brand” means an entity whose Data on Third Party Properties is tracked and monitored by TrackMaven.

1.4. “Customer” means the entity identified in the Order Form.

1.5. “Customer Specific Terms” means terms, if any, specific to a given Customer that are incorporated into the Agreement.

1.6. “Data” means traditional news & print media, paid advertising, email marketing, social media, content marketing/RSS, SEO data, and traffic data collected through the Service from Third Party Properties.

1.7. “Documentation” means any documentation made available to Customer by TrackMaven in connection with the Service.

1.8. “Effective Date” means the date set forth in the Agreement.

1.9. “Intellectual Property” means, with respect to each party, its patents, trademarks, service marks, logos, copyrights, trade secrets, and any other intellectual property.

1.10. “Marks” means, with respect to each party, its trademarks, service marks, and taglines and associated logos.

1.11. “Order Form” means the form used by Customer to order Services.

1.12. “Service(s)” means the products and services, including, without limitation, the software application used to collect, aggregate, track, and analyze Data and generate Analyzed Data for Customer to access via the TrackMaven Platform, and if Customer has purchased a TrackMaven API license, the TrackMaven API, together with any Documentation.

1.13. “Subscription Period” means the period during which Services are provided, as stated in the Order Form.

1.14. “Subscription Start Date” means the Effective Date.

1.15. “Term” means the period starting on the Effective Date.

1.16. “Third Party” means any third party from which Data is collected by the Service.

1.17. “Third Party Properties” means any websites, mobile sites, apps, and products, owned or controlled by Third Parties, from which TrackMaven collects Data.

1.18. “TrackMaven API” means the TrackMaven application programming interface which enables Customer to download the Data or Analyzed Data.

1.19. “TrackMaven Platform” means the platform through which Customer may access Analyzed Data.

1.20. “TrackMaven Properties(s)” means any and all websites and mobile sites owned or controlled by TrackMaven.

1.21. “Users” means Customer personnel authorized to access the Services via the TrackMaven Platform.

1.22. “User Licenses” means the number of Users authorized to access the Services.

1.23. “Workspace Licenses” means the number of TrackMaven workspaces where Users are authorized to access the Services.

2. SERVICES

2.1. Services. TrackMaven provides Services to Customer in which it collects, aggregates, tracks, and analyzes unrestricted Data on a select number of Brands from Third Party Properties and generates Analyzed Data for Customer. If access to Data from a particular Third Party Property is restricted, TrackMaven will make commercially reasonable efforts to obtain permission to access such Data. If unable, TrackMaven shall substitute Data from a comparable Third Party Property. TrackMaven provides four levels of Services: Professional, Advanced, Select, and Enterprise, as further set forth in the Order Form. The parties acknowledge and agree that TrackMaven will use commercially reasonable efforts to continually develop, deliver and provide ongoing innovation to the Services in the form of new features, functionality, capabilities and services and, accordingly, TrackMaven reserves the right to modify the Services from time to time in its sole discretion.

2.2. Ordering Services. Customer shall execute an Order Form to order Services, which will include, among other information, the number of User Licenses or Workspace Licenses initially ordered, and the number of Brands. During the Term, Customer may add User or Workplace Licenses or Brands through a modified or additional Order Form. In addition, Customer may order a license to use the TrackMaven API through the original or an additional Order Form. All Order Forms are subject to approval by TrackMaven.

2.3. Training. Training is provided at no additional charge and includes periodic webinars on how to maximize use of the Services, as well as unlimited access to virtual training sessions.

2.4. Support. Support is available via phone, chat, and email. TrackMaven shall appoint a dedicated account manager to support Customer.

2.5. Customer Obligations. Customer shall cooperate with TrackMaven to enable TrackMaven to provision the Services. Promptly upon request, Customer shall provide TrackMaven with a list of Brands and Users. Customer is responsible for keeping such lists current and providing TrackMaven with updates. Customer is responsible for restricting use of the Services to authorized Users, using no more than the number of User Licenses or Workplace Licenses ordered, and for implementing and enforcing industry-standard secure logon and password procedures.

2.6. License. Contingent on Customer compliance with the terms of the Agreement, TrackMaven hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the Service(s), in object code only, solely (i) for Customer’s own internal business purposes; (ii) during the Term; (iii) subject to these Terms and Conditions and the Agreement; (iv) for authorized Users only; and (v) for the number of Users or Workspace In addition, if Customer has purchased a TrackMaven API license, contingent on Customer’s compliance with the terms of the Agreement, TrackMaven hereby grants to Customer a limited, non-exclusive, revocable, and non-transferable, right to use the TrackMaven API to download the Data or Analyzed Data solely for Customer’s own internal business purposes. Licenses ordered and paid for pursuant to the Order Form. Any and all rights not expressly granted to Customer are reserved by TrackMaven.

2.7. Restrictions. With respect to the Service, the Data, the Analyzed Data, the TrackMaven API and any other Track Maven Intellectual Property (collectively the “TrackMaven Property”), Customer may not, directly or indirectly: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the TrackMaven Property in whole or in part; (ii) copy, modify or make derivative works based upon the TrackMaven Property in whole or in part; (iii) reverse engineer or otherwise decompile or disassemble the TrackMaven Property in whole or in part; (iv) interfere with or disrupt the integrity or performance of the Service or disobey any requirements, procedures, policies or regulations of TrackMaven with respect to its computer systems and networks; (v) attempt to gain unauthorized access to the Service or circumvent or modify any security mechanism employed by TrackMaven; (vi) use or publish Data, Analyzed Data or any data derived therefrom or otherwise use the Service or the TrackMaven API other than for lawful, internal, business purposes and as authorized under this Agreement; (vii) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the TrackMaven Services or collect information about users for any unauthorized purpose or create user accounts by automated means or under false or fraudulent pretenses; (viii) transmit any viruses, worms, defects, Trojan horses or any items of a destructive nature or (ix) make use of the TrackMaven Property in whole or in part in any way to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; or (c) copy any of its ideas, features, functions, or graphics. Customer shall comply with all applicable laws and regulations concerning export, data privacy and protection and cooperate with TrackMaven in connection with compliance thereto. TrackMaven retains the right to terminate or suspend the Services or the Agreement and any Order Forms immediately for any breach by Customer of this Section.

2.8. Tokens; TrackMaven API. In order to access the TrackMaven API, Customer must register for a unique authentication token from TrackMaven. Customer will be issued one or more unique authentication tokens (collectively, “Tokens”), for accessing the TrackMaven API. Customer may only access the TrackMaven API with the Tokens issued by TrackMaven. Access may not always be available. Customer may not sell, transfer, sublicense or otherwise disclose Tokens to any other party and is responsible for maintaining the secrecy and security of its Tokens. Customer is fully responsible for all activities that occur using Tokens assigned to Customer, regardless of whether such activities are undertaken by Customer or a third party. TrackMaven reserves the right to modify the API, and to release subsequent versions of the API in its sole discretion. TrackMaven may limit the number of network calls that Customer may make via the TrackMaven API, and/or the maximum file size, and/or the maximum data that may be accessed, or anything else about the TrackMaven API and the data and/or content it accesses as TrackMaven deems appropriate, in its sole discretion; these limitations may on occasion be without notice. In addition, TrackMaven may post usage limitations at the API area of its web site, and change such usage limits at any time. In addition to its other rights under this Agreement, TrackMaven may utilize technical measures to prevent over-usage and/or stop usage of the API in the event any usage limitations are exceeded.

2.9. Compliance. Customer agrees to provide TrackMaven with access related to Customer’s use of the Service and the TrackMaven API as reasonably requested by TrackMaven to verify compliance with this Agreement and agree not to block or interfere with such efforts by TrackMaven.

3. FEES

Service fees are set forth in the Order Form. Unless stated otherwise in the Order Form, Customer shall pay all fees and expenses, by check or wire transfer, without setoff, deduction, or delay, within thirty (30) days of receipt of invoice.

4. PROPRIETARY RIGHTS

Each party shall retain all rights, title, and interest, in and to Intellectual Property. TrackMaven expressly retains all rights, title, and interest to the Service, including the TrackMaven Platform and TrackMaven API, and any improved, updated, modified or additional parts thereof. Any Intellectual Property produced, conceived, or otherwise developed by or for TrackMaven hereunder shall be the exclusive property of TrackMaven. Each party grants the other a limited, non-exclusive, revocable, nontransferable, non-sublicenseable, royalty-free license to use certain Intellectual Property of the other party in connection with the Agreement, as designated by and in accordance with the guidelines of such granting party, and subject to the terms of the Agreement and each Order Form. Customer shall not remove any TrackMaven Marks from any Data, Analyzed Data or Documentation. Customer grants TrackMaven the right to issue press releases and use Customer’s name and logo on TrackMaven Properties for marketing and promotion purposes.

Customer and its users may, from time to time, make known to TrackMaven suggestions, enhancement requests, techniques, know-how, comments, feedback or other input to TrackMaven with respect to the Services or TrackMaven Intellectual Property (collectively, “Suggestions”). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, TrackMaven shall have a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Suggestion with no obligation to license or to make available the Improvement to Customer or any other person or entity.

5. CONFIDENTIALITY.

“Confidential Information” means all written or oral information, disclosed by one party (the “Discloser”) to the other (the “Recipient”), identified as confidential, as well as information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider to be confidential or proprietary. The Recipient will keep confidential any Confidential Information disclosed to it by the Discloser; provided such information shall not be considered proprietary once it is in the public domain by no fault of the Recipient. With respect to any Confidential Information, the Recipient shall: (i) maintain confidentiality using the same care that it would use for its own confidential information, but in any event with reasonable care; (ii) use the confidential information solely in connection with the Agreement; (iii) cease use of such confidential Information immediately upon termination of the Agreement and either return or destroy it upon request of the Discloser; and (iv) not attempt to reverse engineer or create derivate works from or using the Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given notice to the other, if legally permissible, and provided such assistance as may be reasonably requested to limit or prevent such disclosure.

6. WARRANTIES

6.1. Mutual Warranties. Each party hereby represents and warrants that it: (i) is a legal entity duly organized, validly existing and in good standing; (ii) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of the other party’s obligations under the Agreement or damage the reputation of the other party; (iv) will not, in performing its obligations under the Agreement, knowingly violate any other agreement between such party and any third party, and (vi) will comply, in its performance related to the Agreement, with all applicable law.

6.2. Limitations. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1 OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, NON-INFRINGEMENT AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. TRACKMAVEN DOES NOT WARRANT THAT THE SERVICE OR TRACKMAVEN API WILL (i) MEET ALL OF CUSTOMER’S REQUIREMENTS; (ii) WILL OPERATE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; OR (iii) WILL PROVIDE RESULTS THAT ARE ACCURATE OR RELIABLE OR (iv) WILL MEET CUSTOMER’S EXPECTATIONS. TRACKMAVEN IS NOT RESPONSIBLE FOR ANY DATA OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR THE TRACKMAVEN API, ALL OF WHICH IS OBTAINED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR DEVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH DATA AND/OR MATERIALS.

6.3. Additional Disclaimers. TrackMaven exercises no control over, and accepts no responsibility for, any third party components of the Service which are outside TrackMaven’s control, such as internet access, and computer or network equipment, all of which are the responsibility of Customer. Accordingly, TrackMaven makes no guarantees regarding the speed or uptime of the Service, nor represents that it will be uninterrupted, secure, or error-free. TrackMaven further disclaims any responsibility for the accuracy, legality, completeness, or quality of the Data.

7. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS TO PROCURE SUBSTITUTE SERVICES, LOSS OR CORRUPTION OF DATA OR DOCUMENTATION, USE OR INABILITY TO USE THE SERVICE OR THE TRACKMAVEN API, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO CUSTOMER’S BREACHES OF THE LICENSES OR RESTRICTIONS SET FORTH IN SECTION 2 OR TRACKMAVEN’S PROPRIETARY RIGHTS SET FORTH IN SECTION 4, EITHER PARTY’S BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, THE TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO TRACKMAVEN BY CUSTOMER UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.

8. INDEMNIFICATION

8.1. TrackMaven Indemnities. TrackMaven shall defend, indemnify and hold Customer harmless against any claim (including reasonable attorneys’ fees) incurred as a result of claims, suits, or proceedings (“Claims”) brought against Customer by a third party contending that Customer’s use of the Services infringes any U.S. patent rights of a third party. In the event that the Services or any part thereof are likely to, in TrackMaven’s sole opinion, or do become the subject of an infringement related Claim, and TrackMaven cannot, at its option and expense, procure for Customer the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non infringing, then TrackMaven may terminate the Services. TrackMaven shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Services are the basis of the Claims; (ii) the use or combination of the Services or any part thereof with software, hardware, or other materials not developed by TrackMaven if the Services or use thereof would not infringe without such combination; or (iii) TrackMaven’s compliance with Customer’s instructions. The foregoing states TrackMaven’s entire liability and Customer’s sole remedy for claims of intellectual property infringement.

8.2. Customer Indemnity. Customer shall defend, indemnify and hold TrackMaven, its affiliates, employees, officers, directors and shareholders harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims (i) made or brought against TrackMaven by a third party alleging that the Customer’s use of the Data or the Analyzed Data infringes the intellectual property rights of, or has otherwise harmed, a third party, (ii) based upon Customer’s or any user’s use of the Services not in accordance with the terms hereof, or (iii) based on any failure or alleged failure of the Customer or its users to comply with any applicable law, rule or regulation in connection with its use of the Data or Analyzed Data.

8.3. Procedure. The party seeking indemnification hereunder (the “Indemnified”) shall promptly inform the other party (the “Indemnifying”) of any suit or proceeding filed against the Indemnified for which the Indemnified is entitled to indemnification hereunder. The Indemnifying may direct the defense and settlement of any such claim, with counsel of its choosing. The Indemnified will provide the Indemnifying, at the Indemnifying’s expense, with information and assistance reasonably necessary for the defense and settlement of the claim. The Indemnified shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. An Indemnifying will not settle any such action without the written consent of the Indemnified (which consent will not be unreasonably withheld or delayed).

9. TERM and TERMINATION

9.1. Term. The Term commences on the Effective Date and continues for the duration of the Subscription Period, as set forth in the Order Form. The Term (and the Subscription Period) will automatically renew for successive one (1) year periods, unless a party notifies the other of non-renewal at least ninety (90) days prior to expiration of the then-current Term.

9.2. Termination. A party may terminate the Agreement (i) for a breach of the Agreement by the other party, if such other party has not cured the breach within thirty (30) days of receiving notice that it is in breach; (ii) immediately, upon notice, if the other party (a) is adjudged insolvent or bankrupt, (b) has instituted against it, and not dismissed within thirty (30) days after filing, or institutes any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency, (c) makes any assignment for the benefit of creditors, (d) appoints a receiver, liquidator or trustee of any of its property or assets, or (e) liquidates, dissolves or winds up its business, or (iii) immediately if any change occurs in any applicable laws or regulations that would, in that party’s reasonable opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge.

9.3. Effect. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to TrackMaven prior to the effective date of termination. Upon expiration or termination of the Agreement, all licenses granted hereunder shall immediately terminate, Customer’s right to access or use the TrackMaven Platform or Analyzed Data shall cease, and each party shall immediately cease using the other party’s Intellectual Property and Confidential Information.

9.4. Survival. Sections 5, 6.2, 6.3, 7, 8, 9 and 10 shall survive any termination or expiration of this Agreement.

10. ADDITIONAL PROVISIONS

10.1. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the District of Columbia, without regard to conflicts of law principles, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the district and federal courts located in Washington, DC.

10.2. Assignment. Neither party may assign the Agreement without prior written consent of the other party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either party may assign the Agreement upon notice to (i) a successor-in-interest as a result of a merger, change of control, or consolidation, including without limitation the sale of all or substantially all of its assets, stock or business to which this Agreement relates or (ii) an affiliate controlled by or under common control with such party.

10.3. General. The Agreement, including these Terms and Conditions: (i) covers the parties’ entire agreement, and supersedes all prior discussions and writings between them, relating to its subject matter; (ii) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; (iii) creates no agency, partnership or employer-employee relationship between the parties; their relationship is that of independent contractors; and (iv) has no third party beneficiaries. If any provision in the Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the Parties’ intent; the remainder will remain in full force and effect. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. Customer shall pay on demand all of TrackMaven’s reasonable attorney fees and other costs incurred by TrackMaven to collect any fees or charges due TrackMaven under this Agreement. No failure or delay by a party in enforcing the Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of the Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control. The Agreement may only be amended in writing, signed by both parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by TrackMaven with respect to future functionality or features for the Services. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail if so expressly stated therein. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Notices may be delivered in person, by mail, or electronic mail and shall be deemed served when delivered, to the address provided by each party.

10.4. Government Rights. The Services and the TrackMaven API is “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services, API or such documentation by the United States Government shall be governed solely by the terms of this Agreement, except to the extent expressly permitted by the terms of this Agreement.