THESE TERMS OF SERVICE ("AGREEMENT" OR THE "TERMS") GOVERN THE USE OF THE VISTA PLATFORM AND THE DATA, INFORMATION AND REPORTS GENERATED ("REPORTS") VIA THE PLATFORM (COLLECTIVELY, THE "SERVICES") PROVIDED BY UBERMEDIA, INC. ("UBERMEDIA" OR "WE"). BY REGISTERING AN ACCOUNT AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO ALL THESE TERMS, YOU MUST NOT ACCEPT AND YOU MAY NOT USE THE SERVICES.
1. The Services.
1.1 Access and Data License. Subject to Your compliance with these Terms, UberMedia grants You a term limited, non-exclusive, non-transferable nonsublicensable, revocable license (i) to access the Services and generate data analyses ( the "Reports") during your Subscription Plan solely for use by You and Your internal business operations and otherwise subject to the terms of this Agreement; and (ii) to download, reproduce, copy and use the Reports solely by You and Your internal business operations and otherwise subject to the terms of this Agreement. All Reports are licensed not sold. You may retain copies of Reports after the end of your Subscription Plan, however, such Reports may be stale, outdated or otherwise no longer complete or accurate. You have no rights beyond those specifically granted herein.
1.2 Responsibilities. You undertake to be responsible for all use on Your account of the Services, including to ensure that (i) each account holder is a single user ("Authorized User") who keeps a unique email address; each Authorized User keeps his password confidential, and (ii) You do not allow more than one individual as an Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services. You agree to keep your account login to the Services confidential (using the same care and protection afforded to Your own confidential information which in any case shall be not less than reasonable care).
1.3 Service Restrictions. You shall not: (i) take any action that imposes, or may impose, an unreasonable or disproportionately large load on the Services' system, or interfere with the proper working of the Services, including to use or launch any automated system that accesses the Services in a manner that sends more requests to the servers than a human can reasonably produce by using a conventional on-line web browser; (ii) copy, duplicate, create derivative works from, frame, mirror, republish, download, transmit, or distribute all or any part of the Services; (iii) attempt to reverse compile, disassemble or reverse engineer all or any part of the Services; (iv) access the Services in order to build a product or service which competes with the Services; (v) sublicense, sell, transfer, assign, distribute, or otherwise commercially exploit or make the Services available to any third parties; (vi) attempt to bypass or defeat the security protocols and measures embodied in the Services; or (vii) use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the Services. UberMedia may impose certain limitations on the use of the Services, including allocation of capacity, restricting accounts you may register, imposing expiration dates on Reports and removing expired documents from the Services.
1.4 Data Prohibitions. You agree to use the Services only for a lawful purpose and in accordance with applicable laws and regulations. In addition to the restrictions set forth above, and notwithstanding anything to the contrary herein, You agree that You will not, and will not permit any third part for the following: (a) use the Reports (in whole or in part, alone or combined with other data) to engage in any illegal purpose; (b) for employment, credit, health care treatment, or insurance eligibility; (c) for the purpose of personally identifying individuals or any unlawful tracking or surveillance; or (d) to market or sell UM Data to law enforcement agencies.
2.1 The right to access the Services is explicitly contingent upon Your payment to UberMedia of the fees required for use of the Services ("Fees"). All Fees due under the Agreement are non-cancellable and sums paid nonrefundable. In the event You fail to pay any amount under the Agreement when due, or otherwise breach any terms of this Agreement, in addition to any other remedies available at law or in equity, UberMedia has the right to suspend Your use and access to the Services.
2.2 Billing Policies. When You subscribe to the Services, the order process will require You to submit credit card information, which is processed through a third party credit card processing service. By using our Services, you agree to our pricing and payment terms as we may update them from time to time (or as agreed to in an executed service order between the parties).
2.3 Subscription Plans. Unless other payment arrangements have been agreed to by UberMedia in an executed service order between the parties, You agree to make payments and we will automatically charge the payment method associated with your User Account ("Payment Method"), for so long as your User Account remains active. We may offer plans that you can sign up for that allow you to use certain aspects of our Services for a certain period of time and at set pricing (a "Subscription Plan"). Use of Services aspects in excess of a Subscription Plan's designated allotment may result in additional fees, as specified in the service order. If you elect to use a paid Subscription Plan, you agree to the pricing and payment terms specified in your service order. If we offer new services, Your Service Term may involve additional fees and charges and adding or amending fees and charges for such services, at any time in its sole discretion. Any change to pricing or payment terms will become effective in the billing cycle following notice of such change to you as provided in these Terms.
2.4 Payment Information; Taxes. You must provide UberMedia with a current, valid, accepted Payment Method. You hereby authorize UberMedia (through our third-party payment providers) to bill the fees to your Payment Method, along with any applicable taxes or additional fees due during the billing period. We use Stripe or another service provider for payment services. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
2.5 Cancellation. Except where otherwise set forth in a service order between the parties,You may cancel your subscription at any time, using the instructions provided or by contacting us directly at email address provided. All Subscription Plans will automatically renew until cancelled by you. You are not entitled to a refund for any Subscription Plan that you cancel.
3. Proprietary Rights. The Services (including all intellectual property rights thereto) are owned by UberMedia and UberMedia reserves all rights. As part of using the Services, UberMedia may provide you with the opportunity to submit comments, suggestions, or other feedback regarding the Services. You agree that, in the absence of a separate written agreement to the contrary, UberMedia will be free to use any feedback You provide for any purpose and without any compensation to You.
4. Informational Use Only. The Reports may include information and data supplied by or gathered from other companies that are not affiliated with UberMedia ("Third Party Content"). While UberMedia attempts to provide accurate and timely information in the Reports, neither UberMedia nor the Third Party Content providers guarantee the accuracy, timeliness, completeness or usefulness of the Reports and are not responsible or liable for such content. The Reports are provided for informational purposes only and information in the Reports may become unreliable for a number of reasons, including, for example, changes in market conditions or technologies.
5. Disclaimers; Limitations of Liabilities.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS AND, WITHOUT LIMITING THE FOREGOING, UBERMEDIA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY UBERMEDIA SPECIFICALLY DISCLAIMS TO THE FULLEST EXTENT ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND UBERMEDIA SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM YOUR USE OF THE SERVICES. WE FURTHER DO NOT WARRANT THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (v) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. USE THE SERVICES AT YOUR OWN RISK.
UNDER NO CIRCUMSTANCES SHALL UBERMEDIA BE LIABLE FOR INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, RESULTING FROM ANY ASPECT OF YOUR USE OF THE SERVICES, INCLUDING WHERE SUCH DAMAGES ARISE FROM (i) YOUR USE, MISUSE OR INABILITY TO USE THE SERVICES, (ii) YOUR RELIANCE ON ANY CONTENT IN THE SERVICES, (iii) THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION OR COMPLETE DISCONTINUANCE OF THE SERVICES, (iv) THE TERMINATION OF THE PROVISION OF SERVICES OR THIS AGREEMENT. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES SHALL BE THE CANCELLATION OF YOUR ACCOUNT. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL UBERMEDIA'S LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED THE AMOUNTS PAID BY YOU TO UBERMEDIA IN THE SIX (6) MONTHS PRECEDING THE GRIEVANCE. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF UBERMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
6. Your Responsibility. You accept full responsibility for and shall indemnify, defend and hold harmless UberMedia and its affiliates, and their directors, officers, employees and representatives (the "UberMedia Parties") for any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or otherwise made against any of the UberMedia Parties (hereinafter, collectively, a "Claim") arising in out of Your use of the Services. You shall not settle any such Claim without UberMedia's prior written consent, which shall not be unreasonably withheld.
7.1 Privacy Responsibilities. The state of the law with respect to privacy is evolving; and new or changes in existing applicable privacy and data security laws and regulations may mandate changes to the collection and use of data. Each party will (i) comply with the current U.S. federal and state privacy laws and regulations, and without limiting the foregoing, as applicable, the California Consumer Privacy Act of 2018, and final issued regulations thereto, and the self-regulatory guidelines under the Self-Regulatory Principles of the Digital Advertising Alliance ("DAA") (currently available at http://www.aboutads.info/principles) and (ii) conspicuously post and comply with legally sufficient privacy disclosures detailing its data collection and use practices and provided for required consumer choices.
7.2 Use of the Services is subject to the terms of the UberMedia Privacy Notices found on the UberMedia website found at https://ubermedia.com/general-privacy-policy/. You hereby acknowledge and agree to the terms thereof with respect to any personal information collected in connection with the Services.
8. Term; Termination; Survival. This Agreement commences on Your acceptance and continues monthly until terminated by You or Us or in accordance with your service order license period, or in the absence of one, month to month or year to year as ordered. We may terminate your ability to use the Services at any time. Additionally, your rights to use the Services (including all licenses) will terminate immediately if you breach any of these terms. You may cancel as provided in your service order, or in absence of one, as set forth herein. Upon termination or cancellation for any reason, you will cease rights to access and use of the Services. Upon termination, neither party shall be liable to the other for any damages of any kind, including consequential damages or costs such as lost profits, losses on unfulfilled contracts, or losses of any commitment or investment made in reliance upon the Agreement. Upon termination, You are prohibited from using the Services further. Sections of this Agreement that, by their nature, involve continued obligations or performance after the termination or expiration of this Agreement will survive, including sections entitled "Prohibitions," "Confidentiality," "Ownership," "Disclaimers and Limitations," "Changes" and "General".
9. Changes. UberMedia reserves the unqualified right to modify, suspend, change or stop all or part of the Services either temporarily or permanently at any time and from time to time. New products or services introduced by UberMedia may be subject to different pricing, and terms and restrictions not set forth herein and UberMedia will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee. Nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict UberMedia's right to license, sell, or otherwise make available the Services to any third party or from developing, using, selling or licensing any other products and/or services. Unless otherwise set forth in an executed service order, this Agreement applies to all updates, upgrades and new modules or offerings subsequently provided by UberMedia as part of any purchased Services. We may update these Terms upon notice and posting of updated terms. If we change these Terms, You may cancel Your access upon written notice to us or discontinue use of our Services, as applicable. Continued use of our Services will be deemed acceptance of any such modifications.
10. General. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. The Agreement is governed by California law, excluding its choice of laws principles. Any action arising under or related to these Terms will be resolved by arbitration (and the parties hereby consent to personal jurisdiction) in Los Angeles County, California, in accord with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the case of injunctive or provisional relief, the Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party is entitled to reasonable attorneys' fees and costs. The arbitration will be kept confidential except as required by law. Any claims arising under or related to these Terms must be brought in the initiating party's individual capacity and not as a plaintiff or class member in any class action or other similar proceeding. Nothing in this Agreement shall be deemed to constitute a joint venture, partnership, agency, representative, or employment relationship between the parties. Failure by a party to enforce any provision of this Agreement shall not be deemed to be a waiver of future enforcement of that or any other provision or right granted hereunder. Should any term of this Agreement be declared to conflict with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, then (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms of this Agreement shall remain in full force and effect. Neither party will have the right to assign this Agreement, in whole or in part, by operation of law or otherwise, without the other party's express prior written consent, except that either party may assign this Agreement (without written consent) in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets. This Agreement supersedes any prior understanding or written or oral agreements between the parties and constitutes the entire integrated agreement between UberMedia and You pertaining to the subject matter hereof. There shall be no force or effect to any different or additional terms of any order, purchase order or sales document. No amendment, modification, extension, release, discharge or waiver of this Agreement.