Mezzobit Terms of Service
Welcome to our Audience Value Platform. The following Terms of Service set forth the terms and conditions governing your use of the Audience Value Platform services we provide. These terms and conditions are between Mezzobit Inc. (referred to as “we” or “Mezzobit”) and you, our Customer, that uses the Mezzobit services described herein on one or more websites you own or control (referred to as “you” or “Customer”).
- Audience Value Platform. We agree to make available to you and/or your company the Audience Value Platform (“AVP”), and you accept the AVP, subject to these Terms of Service (the “TOS”). AVP refers to the products and services you have purchased from us, including our Audience Control Module, our Ad Blocker Response module, our Viewability Optimization Module, and our Tag Management System (sometimes referred to as the Trusted Data Interchange or TDI). By using the AVP (or any portion thereof), 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 AVP. You agree to use the AVP as provided herein, report to Mezzobit with respect to the usefulness and functionality of AVP, and cease using the current version of the AVP within ten (10) business days of the release of an updated version of the AVP, all pursuant to this TOS. You agree that you will not resell the AVP without our prior consent.
- Applicable Fees. The applicable fees and discounts for our other products and services are set forth on our website from time to time or on a purchase order we may sign with you.
- Payment Terms. We charge for our products monthly or annually in advance. We charge for professional services monthly in arrears, with payment due 30 days from the date of the bill. All sales are final.
- Product Tiers. We generally charge for our SaaS products on a tiered basis with each tier reflecting a monthly maximum number of impressions.
- For customers who pay monthly in advance, we will charge an additional monthly fee, in the following month, if you exceed the maximum number of monthly impressions in the prior month.
- For customers who pay annually in advance, the maximum impressions may be aggregated across months, until such time as the annual cap has been reached, at which time we will charge you for an additional one year period.
- TMS Free of Charge. Our Tag Management System (TMS, sometimes referred to as the Trusted Data Interchange or TDI) as made available to you shall be free of charge.
- Additional Features. We may make additional features for the AVP, including enhancements to the TDI, available only on a fee basis, as we may notify you from time to time. See our website and/or contact us for more information.
- Payment Method. Except as we may agree with you in writing, a credit card, or other method of electronic payment, will be required for access to any fee based elements of the AVP. 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 in advance 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.
- 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 AVP 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 (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 AVP (or any portion thereof).
- IP Matters.
- Your License to Us so We Can Provide the AVP to You. You hereby grant to us, on the terms and conditions set forth herein, a limited, nonexclusive, nontransferable, royalty-free right and license to use the Customer Property solely in connection with our proving the AVP services contemplated hereby.
- IP relating to the AVP. You recognize and agree that we own and retain all right, title, and interest in and to the AVP 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.
- No Joint IP. No jointly owned intellectual property is created under or in connection with this TOS.
- Service Assistance. We are committed to providing our customers with a great experience with the AVP, and shall promptly respond to any requests for technical assistance. We value our relationship with you, and will make our priority to respond if our assistance is needed. We shall make commercially reasonable efforts to alert you in advance of any planned service outages for maintenance or other purposes. We shall provide contact information for Mezzobit technical experts so the appropriate attention can be brought to resolve service matters
- Confidential Information
- 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 these TOS.
- “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.
- 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.
- 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.
- Term and Termination.
- Term. This TOS shall be effective regarding the TDI for so long as you shall continue to use such technology. This TOS shall be effective regarding the AVP, the Ad Blocking Response module, or any other product we may offer from time to time, for the period of time that you have paid for such product(s), and the term shall automatically extend for each additional month or one year period that you pay for in advance in the future.
- Warranties, Disclaimer. Mezzobit warrants that during each Term it will use its commercially reasonable efforts to ensure that the AVP and related services are provided in and are conducted in a workmanlike manner by qualified personnel. Except for the foregoing, THE AVP IS PROVIDED “AS IS” AND MEZZOBIT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE AVP 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 AVP IS ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, OR THAT ANY DEFECTS WILL BE CORRECTED. YOUR USE OF THE AVP IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR RESULTS FROM THE USE OF THE AVP. MEZZOBIT HAS NO OBLIGATION UNDER THIS AGREEMENT TO SUPPORT OR MAINTAIN THE AVP, OR TO CREATE, DISTRIBUTE OR OTHERWISE OFFER A COMMERCIAL RELEASE OF THE AVP.
VERSIONS OR FEATURES OF THE AVP 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 AVP INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.
- By us. Mezzobit will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a third-party allegation the AVP, 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 Customer 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 (i) only applies to the extent Customer is using the AVP at a level requiring payments at an annualized rate in excess of $2,000, and (ii) shall be capped at the amount Customer has paid to us for the AVP in the 12 months prior to the commencement of such action.
- By You. Customer 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 Customer 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.
- 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.
- Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 5 OR 7 (COLLECTIVELY, THE “EXCLUDED CLAIMS”) OR THE INDEMNIFICATION OBLIGATIONS OF SECTION 10, 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.
EXCEPT FOR THE EXCLUDED 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.
“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.”
- General Provisions.
- Customer Account; Passwords; Security. You will receive a password and account designation upon completing the AVP 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 13.a.
- 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 AVP for your business, and (ii) list Customer as a customer and to include Customer’s name and logo on a list of Customers on Mezzobit’s website and sales collateral distributed to potential customers (subject to compliance with Customer’s guidelines regarding usage of Customer’s marks).
- Amendments. We may waive, amend or modify any provisions of this TOS by proving seven day’s advance notice of such waiver, amendment or modification on our website.
- 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].
- 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.
- 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 AVP unfeasible or not commercially reasonable to continue.
- Governing Law; Arbitration; Equitable Relief.
- 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.
- 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.
- 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.
- Each party acknowledges that its breach of Sections 5 or 7 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 7. The parties agree that the breaching party in any action for an injunction, specific performance decree or similar relief pursuant to Sections 5 or 7 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.
- Entire Agreement. This TOS, including any writing we may have signed with you which refers to this TOS, constitutes the entire agreement between you and us concerning the AVP, and replaces all previous communications, representations, understandings, and agreements, whether verbal or written between the parties or their representatives.
Updated: December 2015