THESE TERMS OF SERVICE ("AGREEMENT") GOVERN ALL USE OF THE VISTA PLATFORM AND THE DATA, INFORMATION AND RESULTS GENERATED ("REPORTS") VIA THE SERVICES (COLLECTIVELY, THE "SERVICES") OFFERED BY UBERMEDIA, INC. ("UBERMEDIA" OR "WE"). BY REGISTERING AN ACCOUNT AND 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 Right of Access. Subject to Your paying all Fees applicable to use of the Services, UberMedia grants You a non-exclusive, non-transferable nonsublicensable, revocable right to access the Services and generate and view Reports during the Subscription Term solely for the purpose of evaluating the Reports generated via the Services in Your internal business operations only and otherwise subject to the terms of this Agreement. Reports are licensed, not sold, and 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. You undertake 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 also agree to use the Services only for a lawful purpose and in accordance with applicable laws and regulations
1.3 Prohibitions. You shall not: (i) not 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, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; (iv) access all or any part of the Services in order to build a product or service which competes with the Services; (v) license, sell, rent, lease, transfer, assign, distribute, disclose, 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.
1.4 Limitations on Use. 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.
2. Fees. 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-cancelable 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 will have the right, in its sole discretion, to suspend Your use and access to the Services. When You subscribe to our Services, the order process will require You to submit credit card information, which is processed through a third party credit card processing service. Upon completion of registration, your credit card will be charged the applicable amount listed in the registration process for the first period of your access to the Services. You will be redirected to our third party credit card processor for completion of the transaction. The period can be monthly or yearly, as applicable. For the monthly period option, beginning in the first calendar month after registration, recurring account charges are billed in advance on a monthly basis on or about the same day of the month that the account was registered. Your credit card will be charged on a recurring monthly basis in accordance with the fee for the service level selected during registration. We will not issue refunds for periods of inactivity within an account.
3. Cancellation. You may cancel your subscription at any time, using the instructions provided or by contacting us directly at email address provided. Our subscriptions are monthly. We will terminate your subscription at the end of the current monthly billing period. No refunds will be provided for days remaining in the period that have been pre-billed.
4. Confidentiality. You agree to keep your account login to the Services and all information accessed via 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) to avoid disclosure to or unauthorized use by any third party. Except as otherwise explicitly permitted, You agree not to copy, publish, transmit, distribute, transfer, rent, sell or in any other way exploit, in whole or in part, the Services, including any compilations or derivative works thereof. You shall bear the full responsibility of any breaches of confidentiality by Your employees and consultants.
5. Proprietary Rights. The Services (including all intellectual property rights thereto and all modifications, updates and enhancements thereon) are owned by UberMedia and UberMedia reserves all rights. Except for the right expressly stated in section 1 herein, this Agreement does not grant You any right or license of any kind with respect of the Services. 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.
6. Reports. 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.
7. Disclaimer; Limitations of Liabilities.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR THE PURPOSE OF PROVIDING UBERMEDIA WITH FEEDBACK ON THE QUALITY AND USABILITY OF THE SERVICES. 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 OF ANY PART OF THE SERVICES AND 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.
8. Indemnification and Release. You accept full responsibility for and shall indemnify and hold harmless UberMedia and its directors, officers, employees and representatives for any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or otherwise (hereinafter, collectively, a "Claim") arising in out of Your use of the Services. You shall indemnify UberMedia against any and all expenses, losses, claims, damages, and liabilities, including, without limitation, attorney's, investigation, legal, court and other out-of-pocket obligations, fees and costs, and costs of being a witness, incurred by reason of, in connection with or arising in part or in whole out of such a Claim. You shall not settle any such Claim without UberMedia's prior written consent, which shall not be unreasonably withheld.
10. Term; Termination; Survival. This Agreement commences on Your acceptance and continues monthly until terminated (the "Subscription Term"). Either party may terminate at any time, for any reason whatsoever, with or without cause. 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 and you shall not use or attempt to use the Reports after termination. 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".
11. 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. 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. New features, functionality or enhancements to the Services may be marketed separately and may require the payment of additional fees and UberMedia will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee. Unless otherwise set forth in an Order Form, this Agreement applies to all updates, upgrades and new modules or offerings subsequently provided by UberMedia as part of any purchased Services.
12. General. The Agreement is governed by California law, excluding its choice of laws principles. The exclusive venue for any litigation arising from or related to the Agreement, shall be the courts of Los Angeles County, California. The exclusive venue for any litigation arising from or related to the Agreement or our Services shall be the courts of Los Angeles County, California, except for any optional arbitration as described next. Excluding claims for equitable relief, if the total amount in dispute is less than $10,000, either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the winning party may have the arbitrator's award entered as a judgment in any court of competent jurisdiction. 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. If there is a difference between the terms of this Agreement, any purchase order terms or other supplement or any other UberMedia Terms of Service set forth on UberMedia's website, this Agreement will govern with respect to Your use of the Services. 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