Terms of Use

TERMS OF USE

This License Agreement (“Agreement”) is made and effective the date signed below by and between Content Analytics (“Provider”) and client/user (“Licensee”). Provider has developed and licenses its services, software program, system, and database marketed under the name Content Analytics (“System”). Licensee desires to utilize the System. In consideration of the mutual promises set forth herein, Provider and Licensee agree as follows:

1. License.

Provider hereby grants to Licensee a non-exclusive, non-transferable, limited license to use the System in the United States of America as set forth in this Agreement. The System is offered to you, Licensee, conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Licensee’s use of the System constitutes agreement to all such terms, conditions, and notices. Provider reserves the right to change the terms, conditions, and notices under which the System is offered, including but not limited to the charges associated with the use of the System. The most up to date terms are available on our website at http://www.contentanalyticsinc.com/terms-use. Please check back on this site for the latest terms.

2. Restrictions.

Licensee shall not modify, copy, duplicate, reproduce, disassemble, decompile, license or sublicense the System, or transfer or convey the System or any right in the System to anyone else without the prior written consent of Provider.

3. Fee.

In consideration for the grant of the license and the use of the System, Licensee agrees to pay Provider, per its regular list price, a license fee, monthly subscription fee, and/or the annual support and maintenance fee for each successive twelve-month use of the System and any updates.

4. No Unlawful Use.

As a condition of Licensee’s use of the System, Licensee warrants to Provider that it will not use the System for any purpose that is unlawful or prohibited by these terms, conditions, and notices. Licensee may not use the System in any manner which could damage, disable, overburden, or impair the System or interfere with any other party’s use and enjoyment of the System. Licensee may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the System.

5. Appropriate Use.

Licensee agrees to use the System with the appropriate computer equipment in the specified manner. In the event of any defect or alleged defect, Licensee shall promptly notify Provider and may return the System to Provider at Licensee’s expense in the first 90 days from the date of initial purchase. Provider shall not be liable for any breach of the System if the System is modified by anyone or if it is used improperly or on an operating environment not approved by Provider. In the event of any defect in the media upon which the System is provided arising within 90 days of the date of delivery of the System, Provider shall provide Licensee a new copy of the System upon return of the original media to Provider.

6. System Installation and Maintenance.

A. Installation. If the System is to be installed on Licensee’s hardware, Licensee agrees to make available the equipment and manpower needed to complete the installation and maintain the equipment and network on which the System will be run as well as take steps to maintain adequate backups, security, and confidentiality of the data contained therein. If the System is hosted with the Provider, Provider may use a third party hosting service provider and may charge an additional fee to the Licensee. Notwithstanding the foregoing option, all other terms and conditions in this Agreement shall remain unchanged.

B. Annual maintenance. Licensee may receive maintenance and support for successive twelve (12) month periods or individual training sessions for a fee per Provider’s regular list price. If there is lapse in Licensee’s payment of subscription, license or maintenance fees, Provider reserves the right to charge Licensee its maintenance fees for the period of the lapse in maintenance. Provider may elect to discontinue maintenance at any time upon notice to Licensee, and refund of any then unearned maintenance fees.

7. Payment.

Payment of the license fee shall be made upon delivery of the System. Payment of any other amount owed by Licensee to Provider pursuant to this Agreement shall be paid within thirty (30) days following invoice from Provider. In the event any overdue amount owed by Licensee is not paid following ten (10) days written notice from Provider, then in addition to any other amount due, Provider may impose and Licensee shall pay a late payment charge at the rate of one percent (1%) per month on any overdue amount.

Some charges are facilitated through Paypal, a third-party payment processing service. If Licensee must agree and are subject to the Paypal Terms of Service. Licensee must expressly consent to this Paypal Terms of Service. As a condition of Provider enabling payment processing services through Paypal, Licensee agrees to provide accurate and complete information, and authorizes Provider to share transaction information related to Licensee use of the payment processing services provided by Paypal.

Provider may replace its third-party payment processing services without notice to Licensee.

8. Taxes.

In addition to all other amounts due hereunder, Licensee shall also pay to Provider, or reimburse Provider as appropriate, and for sales, use, excise taxes or other taxes which are measured directly by payments made by Licensee to Provider. In no event shall Licensee be obligated to pay any tax paid on the income of Provider or paid for Provider’s privilege of doing business.

9. Warranty Disclaimer.

PROVIDER AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED IN THE SYSTEM FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SYSTEM, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. PROVIDER AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH REGARD TO THIS SYSTEM, INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

10. Liability Disclaimer.

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SYSTEM MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. PROVIDER AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SYSTEM AT ANY TIME. ADVICE RECEIVED VIA THE SYSTEM SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND LICENSEE SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO LICENSEE’S SITUATION.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, MISUSE OR INACCURACY OF DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SYSTEM, WITH THE DELAY OR INABILITY TO USE THE SYSTEM OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SYSTEM, OR OTHERWISE ARISING OUT OF THE USE OF THE SYSTEM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. IF LICENSEE IS DISSATISFIED WITH ANY PORTION OF THE SYSTEM, OR WITH ANY OF THESE TERMS OF USE, LICENSEE’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SYSTEM.

Although Provider will implement procedures for backup of Licensee’s data when Provider and/or its suppliers are hosting such data, Provider shall not be held liable for loss or corruption of data, as above, caused due to interruptions or other defects in backup. Furthermore, Provider shall not be responsible for backup of Licensee’s data on a regular basis. It is advised that Licensee may adopt its own procedures for backup of its data if it requires regular or frequent backups.

In no event shall Provider’s liability hereunder exceed the amount of license fees paid by Licensee during the twelve months prior to Licensee’s action, regardless of whether Licensee’s claim is based on contract, tort, strict liability, product liability or otherwise. No action, regardless of form, may be brought by Licensee more than two years after the date the cause of action arose.

11. Confidentiality.

The System and related system, database and manuals are proprietary, Confidential Information of Provider. Licensee shall not disclose, publish or otherwise reveal or make unauthorized copies, except for backup, any of the Confidential Information defined above to any other party whatsoever except with the specific prior written authorization of Provider, except where provided in the Public Information clause of this Agreement. Licensee agrees not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product. The provisions of this paragraph shall survive the revocation or termination of the License granted herein.

12. Public Information.

Provider may ask Licensee to fill out feedback and survey forms relating to the System and its use and may use this information, statements, and opinions of Licensee or its employees in its public announcements or materials. Licensee agrees to hold its own employees as well as Provider and its employees harmless for such use of names, titles, statements and opinions of Licensee/Licensee’s employees regarding the System.

13. Links to Third Party Sites.

The System may contain links to other Web Sites (“Linked Sites”). The Linked Sites are not under the control of Provider and Provider is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Provider is not responsible for webcasting or any other form of transmission received from any Linked Site. Provider is providing these links to Licensee only as a convenience, and the inclusion of any link does not imply endorsement by Provider of the site or any association with its operators.

14. Data Submitted into System.

Provider does not claim ownership of the data (excluding feedback and suggestions) that Licensee posts or uploads, inputs or submits to the System or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting Submissions Licensee grants Provider, its affiliated companies and necessary sublicensees permission to use the Submissions in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, backup, transmit, reproduce, edit, translate and reformat the Submissions.

By posting, uploading, inputting, providing or submitting the Submissions, Licensee warrants and represents that it owns or otherwise controls all of the rights to the Submissions as described in this section including, without limitation, all the rights necessary to provide, post, upload, input or submit the Submissions.

15. Termination/Access Restriction.

Provider reserves the right, in its sole discretion, to terminate Licensee’s access to the System and the related services or any portion thereof at any time, without notice.

16. No Agency Relationship.

Licensee agrees that no joint venture, partnership, employment, or agency relationship exists between Licensee and Provider as a result of this agreement or use of the System. Provider’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Provider’s right to comply with governmental, court and law enforcement requests or requirements relating to Licensee’s use of the System or information provided to or gathered by Provider with respect to such use.

17. Governing Law and Venue.

This Agreement shall be construed and enforced in accordance with the laws of the state of California. Any legal proceeding shall be in the County of San Francisco. In case of legal action, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any other relief to which the party may be entitled.

18. Miscellaneous.

A. Notice. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given by appropriate means.

B. No Assignment. Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Provider.

C. Final Agreement. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

D. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

E. No Implied Waiver. Either party’s failure to insist in any one or more instances for strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.

F. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.