Mezzobit Terms of Service

Mezzobit Terms of Service Welcome to our Trusted Data Interchange. The following Terms of Service set forth the terms and conditions governing your use of the Trusted Data Interchange service we provide. These terms and conditions are between Mezzobit Inc. (referred to as “we” or “Mezzobit”) and you, our Client (referred to as “you” or Client”). 1. The Trusted Data Interchange. We agree to provide to you and/or your company the Trusted Data Interchange Core service (“TDI”), and you accept the TDI, subject to these Terms of Service (the “TOS”). By accessing, downloading or using the TDI, you agree thereby to the terms and conditions of this TOS, and this TOS is binding on you in connection with your use of the TDI. If you do not agree to the terms of this TOS, you do not have permission to and may not access, download or use the TDI. You agree to use the TDI as provided herein, report to Mezzobit with respect to the usefulness and functionality of TDI, and cease using the current version of the TDI within ten (10) business days of the release of an updated version of the TDI, all pursuant to this TOS. 2. Additional Applicable Policies. You agree to be subject to any posted guidelines or rules applicable to the TDI, which may be posted on our website and modified from time to time. All such guidelines or rules, including without limitation our Privacy Policy, are hereby incorporated by reference into the TOS. 3. Fees. a. TDI Free of Charge.  TDI, with the features included in the TDI Core product, is offered free of charge. b. Additional Features. We may make additional features for the TDI available only on a fee basis, as set forth from time to time on our website. c. Payment Method. A credit card, or other method of electronic payment, will be required for access to any fee based elements of the TDI. Except as otherwise set forth on our website, we will automatically charge you (to the payment method we have on file) on a monthly basis for any additional features you have selected, at the then-current fee applicable to such features at the commencement of each payment period. Current fees will be posted on our website. Unless expressly provided otherwise, all payments are non-refundable. 4. Your Information. You represent that you are duly authorized to enter into a binding contract on your behalf and that you are not a person barred from receiving the TDI under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the TDI Client Sign Up form (the “Sign Up Data”) and (b) maintain and promptly update the Sign Up Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the TDI (or any portion thereof). 5. IP Matters. a. Your Non-Exclusive License to use TDI. The TDI is licensed, not sold, to you for use only under the terms and conditions of this TOS. You acknowledge that you shall have only a limited, non-exclusive, nontransferable license to use the TDI internally during the Term. You acknowledge and agree that you will not: (a) use the TDI for any purpose that is illegal, (b) modify or prepare derivative works of the TDI; (c) license, distribute, or transfer the TDI; (d) use the TDI to provide services to third parties; (e) reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code of the TDI; or (f) copy the TDI. You agree that you will use the TDI carefully and will not use it in any way that might result in any loss of its or any third party’s property or information. You acknowledge that, in order to effectively use the TDI, you may be required to place one or more JavaScript tag(s) we specify on your web page(s), and you hereby agree to do so. b. Client IP. Client retains all right, title, and interest in and to any and all raw data and raw data outputs generated or learned through Client’s use of the TDI and all information generated or learned through Client’s placement of Mezzobit-specified JavaScript tag(s) on Client’s web page(s) (the “Client Property”). c. Your License to Us so We Can Provide the TDI to You. You hereby grants to us, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable, royalty-free right and license to use the Client Property solely in connection with our proving the TDI services contemplated hereby. d. IP relating to the TDI. You recognize and agree that we own and retain all right, title, and interest in and to the TDI and all intellectual property rights therein or related thereto, including without limitation any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. e. No Joint IP. No jointly owned intellectual property is created under or in connection with this TOS. 6. Confidential Information. a. Each of us agrees: (i) to protect and safeguard the disclosing party’s Confidential Information against unauthorized use, publication or disclosure with the same degree of care that it uses to protect the confidentiality of its own Confidential Information and, in any event, not less than reasonable care; (ii) to restrict access to the disclosing party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, investment advisors, and contractors who have confidentiality obligations that afford the Confidential Information a substantially similar level of protection as is afforded by these terms; and (iii) not to use, or permit others to use, the disclosing party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under this TOS. b. “Confidential Information” includes any information that is disclosed by one of us to the other that is identified as confidential at the time of disclosure or that the receiving party should, in the exercise of reasonable judgment, know is confidential to the disclosing party. c. Each of us agrees that that it will not, without the express prior written consent of the disclosing party, use or disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information: (a) is already known to the receiving party without restriction on use or disclosure at the time of communication to the receiving; (b) is or becomes generally available to the public through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without limitation as to its use; or (d) is independently developed by the receiving party, without use of the disclosing party’s Confidential Information. d. Each party agrees to: (i) delete and/or return to the disclosing party upon demand and termination of the TOS, the Confidential Information except for one copy of such Confidential Information as is required to be retained by law or regulation, and (ii) use reasonable endeavors to provide the disclosing party with prompt notice if the receiving party becomes legally compelled to disclose any of the Confidential Information, so that the disclosing party may seek a protective order or other appropriate remedy. If such order or remedy is not available in time, the obligation of confidentiality will be waived to the extent necessary to comply with applicable law. 7. Termination. This TOS will be effective during the period (the “Term”) from the acceptance of the TOS through the termination. TOS shall terminate either (i) for convenience upon the thirty (30) day prior written notice by either party to the other party, or (ii) upon a party’s material breach of this TOS that remains uncured for thirty (30) days following written notice from the non-breaching party (except that for a breach of Section 5 or 6, there shall be no cure period). Upon the termination of this TOS for any reason, Client will cease using the TDI, remove all Mezzobit-provided ad tags, JavaScript, beacons, pixels or other code from Client’s web page(s); remove from Client’s computer any files related to the TDI; block any API or other automated computer interfaces enabled for Mezzobit; and return to Mezzobit any Mezzobit-supplied Confidential Information and destroy any computer files related to the TDI. The following provisions will survive the termination of this TOS for any reason: Sections 1, 5 (the portions relating to ownership rights and license restrictions) and 6 through 11. 8. Warranties Disclaimer. THE TDI IS PROVIDED “AS IS” AND MEZZOBIT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TDI OR ANY OTHER CONFIDENTIAL INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. MEZZOBIT DOES NOT WARRANT THAT THE TDI IS ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, OR THAT ANY DEFECTS WILL BE CORRECTED. YOUR USE OF THE TDI IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR RESULTS FROM THE USE OF THE TDI. MEZZOBIT HAS NO OBLIGATION UNDER THIS AGREEMENT TO SUPPORT OR MAINTAIN THE TDI, OR TO CREATE, DISTRIBUTE OR OTHERWISE OFFER A COMMERCIAL RELEASE OF THE TDI. VERSIONS OR FEATURES OF THE TDI LABELED “ALPHA” OR “BETA” ARE EXPERIMENTAL AND HAVE NOT BEEN FULLY TESTED. MEZZOBIT DOES NOT REPRESENT OR WARRANT THAT THESE VERSIONS OR FEATURES, NOR ANY PORTION THEREOF, ARE OR WILL BE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. USE OF SUCH THE ALPHA AND BETA VERSIONS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE TDI INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. 9. Indemnity. a. By us.Mezzobit will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a third-party allegation the TDI, when used as permitted under this TOS infringes or misappropriates any third party copyrights or trade secrets, and Mezzobit will pay those costs and expenses finally awarded against Client in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. This indemnity by us only applies to the extent Client is using the TDI at a level requiring monthly payments (over 20,000,000 monthly impressions) or has purchased and paid for additional features for the TDI service. b. By You. Client will defend at its own expense any action against Mezzobit brought by a third party to the extent that the proximate cause of the action is based upon any action in breach of this TOS, and Client will pay those costs and expenses incurred by Mezzobit in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. c. Procedures Applicable to Both. The foregoing obligations are conditioned on the party seeking indemnification (the “Indemnitee”) (a) promptly notifying the other party (the “Indemnitor”) of any Claim; (b) permitting the Indemnitor, through mutually agreed counsel (Indemnitee’s approval of counsel selected by the Indemnitor will not be unreasonably withheld), to answer and defend and/or settle the claim; and (c) provide non-confidential information and assistance, at the Indemnitor’s expense and request, as needed to defend the Claim. The Indemnitee may, at its expense (not subject to reimbursement) and with separate counsel, monitor or participate in the defense. The Indemnitor will not be responsible for any settlement made by the Indemnitee without the Indemnitor’s consent. The Indemnitor may not settle any Claim that does not unconditionally release the Indemnitee, without the Indemnitee’s consent. 10. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 5 OR 6 (COLLECTIVELY, THE “EXCLUDED CLAIMS”) OR THE INDEMNIFICATION OBLIGATIONS OF SECTION 9, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING SUCH DAMAGES ARISING FROM TORT, (INCLUDING NEGLIGENCE AND STRICT LIABILITY), BREACH OF CONTRACT OR BREACH OF WARRANTY, INCLUDING DAMAGES FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLAIMS AND ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF (I) THE FEES PAID HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM OF LIABILITY, OR (II) ONE THOUSAND UNITED STATES DOLLARS ($1,000). SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON CERTAIN TYPES OF LIABILITY UNDER CERTAIN CIRCUMSTANCES, AND, THEREFORE, SOME OF THE FOREGOING MAY NOT APPLY. 11. Privacy a. Client Data and Privacy. Sign Up Data and other information received from use of the TDI are subject to our applicable privacy policy. You understand that through your use of the TDI you consent to the collection and use (as set forth in the applicable privacy policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Mezzobit and its affiliates. For more information, see the full Mezzobit Privacy Policy at b. User Data and Privacy. You agree that you do not and will not transfer data collected through the use of the TDI to Mezzobit or any third party in violation of any laws, regulations, ordinances and statutes. You agree to post a legally sufficient privacy policy and notice to your users with respect to all laws, including without limitation those relating to privacy and data security, applicable to the collection; transfer to; and processing and use in the United States of user data. You also agree your privacy policy will contain terms relating to data transfer at least as explicit and protective of the user’s privacy as the following: “We use third parties to process data about the visitors to our website, and we or a third party may place a cookie and/or other tag (small bits of unique code) on your computer. We use this code to help us optimize our site to offer a better user experience, to display advertising that is relevant to our visitors and to enhance the security of our website. The information that is collected and stored cannot be used to identify you personally. Most browsers allow you to opt-out of receiving cookies using the settings or preferences menus. Or, you can opt-out by using a third party opt-out solution. By using this site, you consent to the transfer of this data to the United States and/or other countries for storage, processing and use for the above purposes.” 12. General Provisions. a. Client Account; Passwords; Security. You will receive a password and account designation upon completing the TDI sign up process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Mezzobit of any unauthorized use of your password or account or any other breach of security. Mezzobit cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 12.a. b. Publicity. Except as prohibited by law, Mezzobit may (i) within thirty (30) days after the acceptance of this TOS, issue a press release relating to your use of the TDI for your business, and (ii) list Client as a customer and to include Client’s name and logo on a list of clients on Mezzobit’s website and sales collateral distributed to potential customers (subject to compliance with Client’s guidelines regarding usage of Client’s marks). c. Amendments. Mezzobit may waive, amend or modify any provisions of this TOS by proving ten day’s advance notice of such waiver, amendment or modification on the Mezzobit website. d. Notices. All notices and other communications required or permitted hereunder must be in writing and sent to the addressee at the address set forth above (or such other address as the parties may specify from time to time in accordance with this section and must be delivered by e-mail; if to you at the e-mail address specified in your Sign Up Data, and if to us at: [email protected] e. Severability; Waiver; Construction. If any provision of this TOS is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. All waivers must be in writing. The failure to enforce or waiver of any party of a breach of any provision of this TOS will not operate or be interpreted as a waiver of any other or subsequent breach. f. Force Majeure. No failure or omission by either of us to carry out or observe any of these terms (other than any payment obligation) will give rise to any claim against the other, or be deemed a breach of these terms, if the failure or omission arises from causes beyond the other’s reasonable control due to earthquake, flood, fire, or other natural disasters, acts of God, acts of civil or military authority, government priorities, labor controversy, civil disturbance, terrorism, epidemics, quarantine, energy crises, war, riots, or any change in or the adoption of any law, regulation, judgment, or decree that would make the provision or use of the TDI unfeasible or not commercially reasonable to continue. g. Governing Law; Arbitration; Equitable Relief. i. This TOS shall be governed by the laws of the State of New York, applicable to contracts fully performed therein. The U.N. Convention on Contracts for the International Sales of Goods is hereby expressly excluded. All controversies and claims between us are to be resolved by arbitration in accordance with the then-current rules of the American Arbitration Association before a panel of three arbitrators selected in accordance with those rules. The arbitration is to be conducted in New York, NY. ii. Each of us will submit to any court of competent jurisdiction for purposes of enforcing any award, order or judgment. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction. iii. Each of us can also seek and obtain injunctive relief in any court of competent jurisdiction. For purposes of seeking injunctive relief, each of us irrevocably submits to the non-exclusive jurisdiction of the State and Federal courts located in the Borough of Manhattan, New York, NY. If either of us commences any action or proceeding against the other, the prevailing party will be entitled to recover the actual costs, expenses, and attorneys’ fees incurred by it in connection with the action or proceeding and in connection with enforcing any judgment or order entered in connection with the action or proceeding. iv. Each party acknowledges that its breach of Sections 5 or 6 may cause irreparable harm and significant injury that may be difficult to ascertain. The breaching party therefore agrees that specific performance or injunctive relief, in addition to other legal and equitable relief, may be appropriate remedies for any actual or threatened violation or breach of Sections 5 or 6. The parties agree that the breaching party in any action for an injunction, specific performance decree or similar relief pursuant to Sections 5 or 6 shall not allege or assert that the non-breaching party has an adequate remedy at law in respect to the relief sought in the proceeding. The breaching party hereby waives its right to require the posting of a bond by the non-breaching party. Except for the licenses granted above, no implied licenses are granted hereunder. h. Entire Agreement. This TOS, including any documents incorporated herein by reference, constitutes the entire agreement between you and us concerning the TDI, and replaces all previous communications, representations, understandings, and agreements, whether verbal or written between the parties or their representatives. Updated: February 1, 2014