TERMS OF SERVICE
Date of Last Revision: June 25, 2020
Welcome to Flow by LeadGenius!
MobileWorks, Inc. dba LeadGenius (“LeadGenius,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.LeadGenius.com (the “Site”) and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
Access and Use of the Service
Services Description: The Service is designed to provide a market intelligence and lead generation solution allowing users to identify and build contact and account data, and analyze lead data performance.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify LeadGenius of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. LeadGenius will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: LeadGenius reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that LeadGenius will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that LeadGenius may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on LeadGenius’s servers on your behalf. You agree that LeadGenius has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that LeadGenius reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that LeadGenius reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Conditions of Use
User Conduct: You are solely responsible for all information, data, text, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by LeadGenius. LeadGenius reserves the right to investigate and take appropriate legal action against anyone who, in LeadGenius’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of LeadGenius, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose LeadGenius or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Fees: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide LeadGenius information regarding your credit card or other payment instrument. You represent and warrant to LeadGenius that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay LeadGenius the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize LeadGenius to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable order form until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let LeadGenius know within sixty (60) days after the date that LeadGenius charges you. We reserve the right to change LeadGenius’s prices. If LeadGenius does change prices, LeadGenius will provide notice of the change on the Site or in email to you, at LeadGenius’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. LeadGenius may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by LeadGenius thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on LeadGenius’s net income.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by LeadGenius, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by LeadGenius from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of LeadGenius, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by LeadGenius.
The LeadGenius name and logos are trademarks and service marks of LeadGenius (collectively the “LeadGenius Trademarks”). Other LeadGenius, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to LeadGenius. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of LeadGenius Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of LeadGenius Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will LeadGenius be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that LeadGenius does not pre-screen content, but that LeadGenius and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, LeadGenius and its designees will have the right to remove any content that violates these Terms of Service or is deemed by LeadGenius, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients, including any customer relationship management (“CRM”) data you upload to the Site (your “CRM Data”) (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. Unless specifically permitted by you, your use of the Site and any LeadGenius Service does not grant LeadGenius the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for LeadGenius commercial, marketing or any similar purpose. For avoidance of doubt, User Content shall not include any independently verifiable content that is or can be acquired by LeadGenius through any other medium.
Notwithstanding the foregoing, LeadGenius shall have the right to collect and analyze your User Content and other information relating to the provision, use and performance of various aspects of the Site and Service and related systems and technologies (including, without limitation, information concerning CRM Data and data derived therefrom), and LeadGenius will be free (during and after the term of your use of the Service) to (i) use such User Content (including CRM Data) to improve and enhance the Site and Service and for other development, diagnostic and corrective purposes in connection with the Site and Service, related software and services and other LeadGenius offerings, and (ii) disclose such UserContent (including CRM Data) solely in aggregate or other de-identified form, such that your (and your customers’) identity is impossible to ascertain, in connection with the LeadGenius business. No rights or licenses are granted except as expressly set forth herein.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to LeadGenius are non-confidential and LeadGenius will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that LeadGenius may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of LeadGenius, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. LeadGenius has no control over such sites and resources and LeadGenius is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that LeadGenius will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that LeadGenius is not liable for any loss or claim that you may have against any such third party.
Indemnity and Release
You agree to release, indemnify and hold LeadGenius and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LEADGENIUS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LEADGENIUS MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LEADGENIUS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LEADGENIUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL LEADGENIUS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID LEADGENIUS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
At LeadGenius’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Oakland, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Notwithstanding the provisions of the introductory section above, if LeadGenius changes this ‘Arbitration’ section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service ), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of LeadGenius’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and LeadGenius in accordance with the provisions of this section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that LeadGenius, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if LeadGenius believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. LeadGenius may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that LeadGenius may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that LeadGenius will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and LeadGenius will have no liability or responsibility with respect thereto. LeadGenius reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and LeadGenius and govern your use of the Service, superseding any prior agreements between you and LeadGenius with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and LeadGenius agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Alameda County, California. The failure of LeadGenius to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of LeadGenius, but LeadGenius may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
These Terms of Service (these “Terms of Service”) are between HG Insights, Inc., a Delaware corporation (“HG Insights”), having its principal place of business at 1 North Calle Cesar Chavez, Suite 100, Santa Barbara, CA 93103, and the individual or entity entering into these Terms of Service (“Customer”). These Terms of Service and any Order Form that references these Terms of Service shall be collectively referred to as the “Agreement.” The Agreement constitutes a legal agreement that governs Customer’s access to and use of the Content and Services (as defined below).
CUSTOMER MAY ACCEPT THE TERMS OF THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, OR BY USING ANY FREE SERVICE OFFERED BY HG INSIGHTS. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE CONTENT OR SERVICES.
ANY INDIVIDUAL ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY MUST HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.
If Customer is a direct competitor of HG Insights offering similar products and services, Customer may not access the Content or Services for any purpose, except with HG Insights’ prior written consent.
This Agreement is effective between HG Insights and Customer as of the date of Customer accepts this Agreement (the “Effective Date”).
“Browser Extension(s)” means any software plug-in or application that HG Insights develops that extends the functionality of a web browser in order to support the delivery of the Services.
“Content” means information produced by HG Insights, or obtained by HG Insights from publicly available sources or third party content providers, and made available to Customer pursuant to the Services. Content includes, but is not limited to, Technology Data.
“Delivery Methods” means delivery of the Services via any of HG Insights’ Websites, application programming interfaces (APIs), Browser Extensions, or Marketplace, as well as via electronic files, printed documents, or other formats specified in an Order Form.
“Marketplace” means any online directory, catalog or marketplace of applications that interoperate with the Services, including, but not limited to, Salesforce AppExchange located at: http://www.salesforce.com/appexchange, and any successor websites.
“Order Form” means an online order or ordering document referencing this Agreement specifying the Services or Content that HG Insights will provide to Customer, including any addenda and supplements.
“Services” means the services purchased by Customer online through a link, or through an Order Form, or provided to Customer free of charge, or through a free trial, and made available to Customer via any Delivery Method, in order to access the Content.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Services and Content, as specified in the applicable Order Form. If no period is specified, the Subscription Term shall be one (1) month.
“Taxes” means any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholdings taxes assessable by any local, state, provincial or foreign jurisdiction.
“Technology Data” means information regarding which specific technology products are in use by specific companies, company firmographic attributes, industry spending estimates and estimated contract renewal dates.
“User(s)” means an individual accepting this Agreement on his or her behalf or on behalf of a company or other legal entity, an individual authorized by Customer to use the Services, for whom Customer has provisioned the Services. Users may include Customer’s employees, consultants, contractors, agents, and third parties acting on Customer’s behalf and that have access to the Services.
“Website(s)” means any website available online that is owned or controlled by HG Insights, including but not limited to the website located at https://www.hginsights.com, and any of its web pages, as well as any successor websites.
- SERVICES AND CONTENT
2.1 Ownership. The Services and Content are the exclusive property of HG Insights. All rights, title and interest (including patent, copyright, trade secret rights, trademarks, logos and all other intellectual property rights with respect to the Content) are and will always be and remain the property of HG Insights, including any future Services or Content developed as a result of any Customer feedback or suggestions.
2.2 Subscriptions. The Services and Content are available as subscriptions, and may be used during the Subscription Term only.
2.3 HG Insights Responsibilities. HG Insights will make the Services and Content available to Customer pursuant to this Agreement, and HG Insights will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except during planned downtime for upgrades and maintenance to the Services or for any unavailability caused by circumstances beyond HG Insights’ reasonable control. The Services and Content that are made available to Customer via a Marketplace are subject to the terms and conditions and availability of such Marketplace, and HG Insights is not responsible for any unavailability caused by such Marketplace and/or related applications that may be required for such Marketplace to function.
2.5 Usage Restrictions. The Services and Content may only be used by Customer for its internal use during the Subscription Term. Customer may not sell, resell, license, sublicense, rent, publish, distribute, or make the Services or Content available to any third party. Customer may not reverse engineer, decompile or otherwise attempt to access any code in connection with the Services or any other aspect of HG Insights’ technology. Customer may not extract, scrape or otherwise attempt to access or download the Content in any manner not contemplated by this Agreement. Customer may not use the Content to enable the creation of any audience segment in a third party application including, but not limited to, data management platforms (DMPs) or demand-side platforms (DSPs) or social media platforms for the purpose of delivering targeted programmatic display or social advertising campaigns. Customer may not duplicate, or generate modified versions of, the Services or Content for the purpose of retaining the Services or Content beyond the Subscription Term.
2.6 Data-as-a-Service (DaaS) Fair Use. Deliverables from Data-as-a-Service will include no more than 20,000 rows and 50 columns of data. Technology install data (InstallView) deliverables will be include no more than 20 technology products. Each full HG Insights Platform user will receive no more than 10 Data-as-a-Service deliveries per month.
- FEES AND PAYMENT
3.1 Fees. Fees are based on the Services and Content subscriptions purchased and not on actual usage. Customer will pay all fees specified in the applicable Order Form. Payment of fees is non-cancellable and non-refundable, and quantities purchased cannot be decreased during the relevant Subscription Term. Unless otherwise specified, a quantity in the Order Form refers to Users and the Services and Content may not be accessed by more than that number of Users. Should the total number of Users change during existing active subscriptions, subscriptions can be added at the same price as the underlying active subscription pricing, prorated for the portion of the Subscription Term remaining at the time when the subscriptions are added. Any added subscriptions will expire on the same date as the underlying active subscriptions and HG Insights reserves the right to update pricing upon renewal.
3.2 Payment. Customer will provide HG Insights with an Order Form or other document acceptable to HG Insights. If Customer is providing credit card information to HG Insights, Customer authorizes HG Insights to charge such credit card for all Services purchased through an Order Form or online. If the payment method specified in the Order Form is not by credit card, HG Insights will issue an invoice to Customer in advance in accordance with the terms of the Order Form. Any charges specified in such invoice are due within 30 days from the invoice date, unless otherwise specified in the Order Form. Without limiting its right or remedies, HG Insights reserves the right to suspend the Services to Customer if outstanding late payments are 5 days or more overdue.
3.3 Taxes. Fees payable in connection with this Agreement do not include any Taxes and Customer is responsible for paying Taxes, unless HG Insights has a legal obligation to do so, in which case HG Insights will invoice Customer for such Taxes and Customer agrees to pay such Taxes if so invoiced.
- TERM AND TERMINATION
4.1 Term of Agreement. This Agreement begins on the Effective Date and continues until all underlying subscriptions have expired or have been terminated.
4.2 Subscription Term. The Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless written notice is given by either party at least 30 days prior to the expiration of the active Subscription Term.
4.3 Termination. A party may terminate this Agreement for cause upon 30 days’ written notice to the other party of a material breach if such breach remains uncured after 30 days from the delivery of such notice.
Each party acknowledges that during the term of this Agreement, it shall have access to the confidential information and trade secrets of the other party consisting of, but not limited to, information concerning each other’s methods of operations, systems, products, customer lists, agent lists, and other such proprietary business information. Each party agrees not to use or disclose the confidential information (“Confidential Information”) of the other party. Unless expressly authorized in writing by the other party, neither party shall publicly disclose any nonpublic information or materials provided by the other party under this Agreement and reasonably understood to be Confidential Information, or use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is in or becomes available in the public domain by no action of the receiving party hereunder, (ii) is already lawfully in the receiving party’s possession, (iii) was known to the receiving party prior to the date of disclosure, (iv) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (v) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party timely notice of such court order or subpoena. Furthermore, Customer will keep in strict confidence all passwords and other access information to the Services. Each party retains ownership of its confidential information.
Subject to Customer’s compliance with the terms and conditions of this Agreement, HG Insights will, at customer’s request, defend or settle any action brought against Customer to the extent that it is based upon a claim that the Services, as used within the scope of this Agreement, infringe any United States patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer, provided that Customer: (a) promptly notifies HG Insights in writing of the claim; (b) grants HG Insights sole control of the defense and settlement of the claim; and (c) provides HG Insights, at HG Insights’ expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim.
Each party hereby represents and warrants to the other party that it has all necessary authority to enter into this Agreement.
- DISCLAIMER OF WARRANTIES
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S ACCESS TO AND/OR USE OF THE SERVICES AND CONTENT IS AT CUSTOMER’S SOLE RISK. HG INSIGHTS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HG INSIGHTS MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES HG INSIGHTS MAKE ANY WARRANTY THAT THE CONTENT IS ACCURATE OR CURRENT, OR THAT ANY DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED. CUSTOMER UNDERSTANDS AND AGREES THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S SOLE RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR CORRUPTION OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT OR MATERIAL. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM HG INSIGHTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
- LIMITATIONS OF LIABILITY
WITH THE EXCEPTION OF A BREACH OF SECTION 5 (CONFIDENTIAL INFORMATION) AND SECTION 6 (INDEMNIFICATION), EACH PARTY’S MAXIMUM LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE (IF ANY) BY CUSTOMER TO HG INSIGHTS IN THE 6 MONTHS PRIOR TO THE OCCURRENCE OF SUCH CLAIM FOR THE SPECIFIC SERVICE WHICH CAUSED SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- GENERAL TERMS
10.1 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.2 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
10.3 Survival. Sections 2.5 (Usage Restrictions), 4 (Term and Termination), 5 (Confidentiality), 8 (Disclaimer of Warranties), 9 (Limitations of Liability), and 10 (General Terms) shall survive any expiration or termination of this Agreement.
10.4 Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement, together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, sale of assets or similar change of control transaction, not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5 Force Majeure. HG Insights will not be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond HG Insights’ reasonable control.
10.6 Publicity. Unless specified otherwise on the Order Form, HG Insights may identify Customer as a business partner and release publications, announcements and/or press releases relating to this Agreement. Customer may not use HG Insights’ trademarks or logos or any other name, logo, icon or identifying any Services or Content without HG Insights’ prior written permission.
10.7 No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.8 Notices. All notices under this Agreement shall be in writing and shall be given by personal delivery, by certified mail (return receipt requested), or by overnight courier. Notices to HG Insights shall be addressed to the attention of its Chief Financial Officer.
10.9 Entire Agreement. This Agreement constitutes the entire agreement between Customer and HG Insights regarding Customer’s use of the Services and Content and supersedes all prior or current oral or written agreements concerning its subject matter. No modification, variation or amendment of this Agreement shall be effective unless made in writing and signed by the parties.
10.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. This Agreement may be executed by facsimile signature (PDF signature or otherwise).