Terms and Conditions May 29, 2014 - October 15, 2014
Digital Analytics Subscription Services
1. Definitions
1.1 “Agreement” means TrackMaven’s Digital Analytics Subscription Services Agreement agreed to by Customer, which incorporates these Terms and Conditions.
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 Agreement.
1.5 “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.
1.6 “Documentation” means any documentation made available to Customer by TrackMaven in connection with the Service.
1.7 “Effective Date” means the date Customer executes the Agreement.
1.8 “Initial Order” means the initial number of Brands and Users subscribed to by Customer 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 “Service(s)” means the products and services, including, without limitation, the software application used to collect, track, and analyze Data and generate Analyzed Data for Customer to access via the TrackMaven Platform, together with any Documentation.
1.12 “Subscription Period” means the period set forth in the Agreement commencing on the Effective Date.
1.13 “Subscription Start Date” means the Effective Date.
1.14 “Term” means the term set forth in the Agreement.
1.15 “Third Party” means any third party from which Data is collected by the Service.
1.16 “Third Party Properties” means any websites, mobile sites, apps, and products, owned or controlled by Third Parties, from which TrackMaven collects Data.
1.17 “TrackMaven Platform” means the platform through which Customer may access Analyzed Data.
1.18 “TrackMaven Properties(s)” means any and all websites and mobile sites owned or controlled by TrackMaven.
1.19 “Users” means Customer personnel authorized to access the Services via the TrackMaven Platform.
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 Third Party Property is restricted, TrackMaven will make commercially reasonable efforts to obtain permission to access such Data. If unable, TrackMaven may substitute Data from a comparable Third Party Property.
2.2 User Accounts. The number of Users who may access the Services via the TrackMaven Platform is set forth in the Agreement. Customer is responsible for limiting use of the Services to authorized Users only and for implementing and enforcing secure logon and password procedures.
2.3 Customer Obligations. Customer shall cooperate with TrackMaven to enable TrackMaven to provision the Services, including providing TrackMaven with a list of Brands and Users promptly upon request.
2.4 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; and (iv) for the number of Users subscribed and paid for pursuant to the Agreement. Any and all rights not expressly granted to Customer are reserved by TrackMaven.
2.5 Restrictions. With respect to the Service and any Track Maven Intellectual Property, Customer may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit it; (ii) modify or make derivative works based upon it; (iii) reverse engineer or otherwise decompile or disassemble; (iv) interfere with or disrupt the integrity or performance of the Service; (v) attempt to gain unauthorized access to the Service; (vi) publish Analyzed Data or any data derived therefrom or otherwise use the Service other than for lawful, internal, business purposes; or (vii) make use of it 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 the Service or the Agreement immediately for any breach by Customer of this Section.
Fees
Service fees are set forth in the Agreement. Unless stated otherwise in the Agreement, Customer shall pay all fees and expenses, without setoff, deduction, or delay, within thirty (30) days of receipt of invoice, by check, wire transfer, or credit card, as provided in the invoice.
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 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. Customer shall not remove any TrackMaven Marks from any 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.
“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.
6.1 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)Â 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)Â 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 the 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.
6.3 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 or quality of the Data.
In no event shall either party be liable for any incidental, indirect, special, consequential 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 of lost or damaged data or documentation or liabilities to third parties arising from any source, even if advised of the possibility of such damages. Except with respect to breaches of confidentiality and indemnification obligations, the cumulative liability for all claims arising from or relating to the Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, shall not exceed, with respect to TrackMaven’s liability, the amounts actually paid, and in the case of Customer, the amounts payable, under the Agreement during a twelve (12) month period.
8.1 Mutual Indemnities. Each party, at its own expense, will indemnify, defend, and hold harmless the other party, its subsidiaries, affiliates and assigns, and its and their officers, directors, employees and agents, from and against any loss, demand, cause of action, debt or liability ordered by a court or agreed upon in settlement arising out of a third-party claim resulting from (i) patent or copyright infringement, misappropriation of confidential information or violation of other intellectual property rights or other proprietary rights or licenses, including, without limitation, trademark or trade secret rights related to its intellectual property; and (ii) any breach or alleged breach of its representations and warranties under the Agreement.
8.2 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).
9.1 Term. The Term and renewal provisions are set forth in the Agreement.
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. Upon expiration or termination of the Agreement, all licenses rights 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.
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 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 or consolidation or in connection with the sale of all or substantially all of its assets or (ii) an affiliate of 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. 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 obligations of the parties which, by their nature, would continue beyond termination or expiration of the Agreement shall survive termination or expiration of the Agreement. The Agreement may only be amended in writing, signed by both parties. 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.