General
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TERMS OF SERVICE. These Terms of Service (“Terms of Service”) govern your access to and use of Vidalytics® services including the Vidalytics® Platform and any other services, plans, features, products, content, applications, software, maintenance and training offered by us from time to time (collectively the “Service”), including those that may be identified in one or more Vidalytics® sales order documents (“Sales Order” or “Sales Orders”), if applicable.

The Services are available only to individuals who are at least 18 years old. If Customer is an individual, Customer represents and warrants that Customer is at least 18 years old. Customer also represents and warrants that the Customer is not a competitor, nor intends to become one, of Vidalytics’® video hosting and video marketing platform.

ACCEPTANCE. By using or visiting the Service, you accept and agree to be bound by (1) these Terms of Service, (2) all Sales Orders which are incorporated herein by reference (collectively referred to as the “Agreement”). This Agreement constitutes a binding agreement between the customer (“Customer,” “you,” and “your”) and Vidalytics®, LLC. operating as Vidalytics® (“Vidalytics,” “us,” “we,” and “our”). This Agreement represents the parties’ entire understanding regarding the Services and shall govern over any prior oral or written agreement or discussions or different or additional terms or conditions of any purchase order, invoice or other non-Vidalytics® ordering document. No other terms or conditions of any purchase order, invoice or other non-Vidalytics® ordering document shall apply to the Services, unless agreed to in writing by both parties. CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS AGREEMENT. BY CLICKING ON THE "ACCEPT" BUTTON AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

IF YOU ARE AN INDIVIDUAL AND SUBSCRIBE TO THE SERVICES FOR A TERM (THE “SUBSCRIPTION TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM AT VIDALYTICS’ THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH THIS AGREEMENT.

DEFINITIONS. “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information not displayed on vidalytics.com is Vidalytics'® Confidential Information.

“Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to the Services.

“Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Vidalytics® in connection with providing the Services, including without limitation Content submitted by Customer.

“Plan” means Vidalytics'® free or any paid plans, as applicable and as further described on Vidalytics' website available at: https://vidalytics.com/pricing.

“Services” means the services hosted by Vidalytics® and provided to Customer under this Agreement, including the Vidalytics® Platform.

“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.

“Updates” means any patch, revision or update to the Services delivered by Vidalytics®.

“Vidalytics® Platform” means the code, technology and servers used in the operation and provision of the Services and includes the Documentation and Software.

“Viewers” means viewers that use or view the Customer Content.

“Viewer Data” means the electronic data concerning the characteristics and activities of Viewers (including personal information of such Viewers) collected and analyzed by the Service relating to such Viewers use or viewing of the Customer Content.

Services

SUBSCRIPTION SERVICE. Unless otherwise provided in a Sales Order, Services are purchased by Customers as subscriptions. Subject to your compliance with this Agreement, Vidalytics® grants you a non-transferable, non-exclusive, worldwide right to access and use the Services during the term set out in the applicable Sales Order (“Subscription Term”).

Vidalytics® may provide the Services to Customer directly, or indirectly using contractors or other third party vendors or service providers. Use of the Services by Customer shall not unreasonably interfere with use of the Services by other Vidalytics customers. All Plans have an associated monthly bandwidth limit as specified on the pricing page of the Vidalytics® website ( https://vidalytics.com/pricing ). Monthly limits are calculated based on calendar months and are based on the date of account activation. You agree to use the Services within the usage limits set out in the Sales Order. It is your responsibility to ensure that you do not exceed those limits and restrictions. Extra charges will apply if you exceed any usage limits at our then-current usage fees.

NECESSARY EQUIPMENT TO USE THE SERVICES. You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment and services needed to connect to, access and use the Services.

SYSTEMS. Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).

VIDALYTICS® ACCOUNTS. In order to use the Service, you will have to register and create an account with us (each, an “Account”) and provide one or more names, email addresses, login usernames and passwords (each a “Vidalytics® ID”). You are responsible for maintaining the confidentiality of your Vidalytics® IDs. You agree not to use the Vidalytics IDs, usernames or passwords of any third party or disclose your Vidalytics® IDs, usernames or passwords to any third party. You are responsible for any and all activity that occurs on your Account. If you suspect any unauthorized use with your Account, you must notify us immediately. You agree to provide us with correct and complete Account information at all times and inform us of any changes to the information you have provided.

FREE TRIAL. If a Customer registers for a free trial of the Services, Vidalytics will make the Services available on a trial basis and free of charge to the Customer until the earlier of (a) the end of the free trial period or (b) the start date of Customer’s subscription. If Vidalytics includes additional terms and conditions on the trial registration Web page, those will apply as well. During the free trial period, (i) the Services are provided “as is” and without a warranty of any kind, (ii) Vidalytics may suspend, limit, or terminate the Services for any reason at any time without notice and (iii) Vidalytics will not be liable toward Customer for damages of any kind related to Customer’s use of the Services. Unless Customer subscribes to the Services before the end of the free trial, all of Customer’s data on the Service may be permanently deleted at the end of the trial and Vidalytics may not be able to recover it.

BETA TESTING PROGRAM TERMS & CONDITIONS. Vidalytics may from time to time make available to its Customers, several Vidalytics beta products or services which are in the Beta phase (“Vidalytics Beta Products and Services”). Vidalytics will clearly highlight beta features/products in its Vidalytics Products and Services to clearly differentiate them from rest of the features. If Customer wishes to use such Vidalytics Beta Products or Services which is in the beta phase, this clause will govern the use of such Vidalytics Beta Products and Services.

Subject to terms and conditions of this clause, Vidalytics grants Customer a non-exclusive, non-transferable license to use the Vidalytics Beta Products and Services for a period designated by Vidalytics for the purpose of testing and evaluation of such Vidalytics Beta Products and Services by providing Vidalytics with early feedback on the performance of Vidalytics Beta Products and Services, identification of any defects, reporting of any bugs, usability of Vidayltics Beta Products and Services, and ideas for improvement of Vidalytics Beta Products and Service.

By accepting these Beta Testing Program Terms & Conditions, Customer hereby assigns to Vidalytics all rights, titles and interests in any feedback, ideas for improvement, and all intellectual property rights therein, including without limitation all patent, copyright, trade secret and trademark. Customer hereby acknowledges and understands that the Vidalytics Beta Product and Services licensed hereunder is still in the testing phase and is provided on an “as is” and “as available” basis without a warranty of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, accuracy, completeness, performance and fitness for a particular purpose. Notwithstanding anything to the contrary contained herein or elsewhere, in no event shall Vidalytics be liable for any damage whatsoever arising out of Customer’s use or inability to use Vidalytics Beta Products and Services, even if Vidalytics has been advised of the possibility of such damages. Customer hereby understands and accepts that any risk or damages arising out of the use or performance of the Vidalytics Beta Products and Services will be Customer’s responsibility.

It is hereby clarified that the Vidalytics Beta Products and Services may contain bugs, errors, omissions, and other problems, and Vidalytics will not provide any support and maintenance for its beta Vidalytics Products and Services. The Vidalytics Beta Products and Services may not operate correctly and may be substantially modified prior to first commercial availability, or may be withdrawn at any time. Although Vidalytics will make best possible efforts to intimate users of Vidalytics Beta Products and Services about any modification or termination of the Vidalytics Beta Products and Services ahead of time, Vidalytics reserves the right to modify or terminate the Vidalytics Beta Products and Services and Customer’s access to the Vidalytics Beta Products and Services for any reason, without notice, at any time, and without any liability to Customer. Once the Vidalytics Beta Products and Services are terminated, Vidalytics will not be obliged to provide continued access to data collected during the testing period after the beta is terminated. However, Vidalytics shall delete the data collected during the beta phase upon receipt of a written request for deletion of such data by Customer.

Services

‍PAYMENT. Except as otherwise set forth in the Sales Order, you agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Vidalytics with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider (“Payment Provider”), or Sales Order information, as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities.  By providing Vidalytics with your credit card number or PayPal account and associated payment information, you agree that Vidalytics is authorized to immediately invoice your Account for all fees and charges due and payable to Vidalytics hereunder and that no additional notice or consent is required.  You agree to immediately notify Vidalytics of any change in your billing address or the credit card or PayPal account used for payment hereunder.  Vidalytics reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.

SUBSCRIPTION. You will be responsible for payment of the applicable fee for any subscription to the Services (each, a “Service Subscription Fee”) at the time you create your Account and select your Plan, or  (each, a “Service Commencement Date”).  Except as set forth in the Agreement, all fees for the Services are non-refundable.

AUTOMATIC RENEWAL. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial Subscription Term, and again after any subsequent Subscription Term, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Company’s then-current price for such subscription Plan. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least 1 day prior to the Renewal Commencement Date (or in the event that you receive a notice from Vidalytics that your subscription will be automatically renewed, you will have 3 days from the date of the Vidalytics notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Vidalytics at hi@vialytics.com or log in and go to the “Close Account” section on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current Subscription Term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current Subscription Term. By purchasing a subscription to the Service, you authorize Vidalytics to charge your Payment Provider now, and again at the beginning of any subsequent Subscription Term. Upon renewal of your subscription, if Vidalytics does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Vidalytics may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

TAXES. Customers will be liable for any taxes required to be paid on the Services provided under the Agreement.

DISPUTES. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: hi@vidalytics.com.

Vidalytics Content and License

VIDALYTICS CONTENT. The Services contain Content, Documentation, and Software owned by Vidalytics, its suppliers or licensors (“Vidalytics Content”). Vidalytics, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Vidalytics Content. The Services and Vidalytics Content are protected by copyright, trademark, patent, trade secret and other laws.

OWNERSHIP AND LICENSE. The Services and Vidalytics Content are licensed and not sold to you. All rights not expressly granted to you in this Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use or sell any Vidalytics Content or other Content (other than Customer Content) appearing on or through the Services. You must not modify, build upon or block any portion or functionality of the Services. We grant you a limited, revocable, non-sublicensable license to reproduce and display the Vidalytics Content (excluding software code) in connection with using the Services during the Subscription Term. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not misuse the Services. You may use the Services only as permitted by law. The licenses granted by us terminate if you do not comply with this Agreement.

RESTRICTIONS. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services or Vidalytics Content or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services or Vidalytics Content; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) access the Service or Vidalytics Content in order to develop a competing product or service; (v) use the Service or Vidalytics Content to provide a service for others; (vi) use the Vidalytics Platform to operate more or different types of applications than permitted under the applicable Sales Order; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services or Vidalytics Content; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any Applicable Law; (x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xiv) intentionally include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xi) intentionally cause a computer to malfunction, regardless of how long the malfunction persists; or (xii) alter, disable, or erase any computer data, computer programs or computer software without authorization.

FEEDBACK. If you or a Viewer send a feature request, comments or suggestions to us, you grant us a perpetual, sub-licenseable, royalty-free, transferable license to use, modify and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information. This shall not include any customer data, such as customer’s videos.

RIGHT TO USE TRADEMARKED MATERIALS. Customer agrees to let Vidalytics use its organization's logo in Vidalytics' customer list and at other places on its website (including but not limited to vidalytics.com). Vidalytics shall have the right to issue a press release announcing the fact of this Agreement and describing the nature of their relationship. Vidalytics shall have the right to list Customer as a customer in written, oral, and electronic materials which include the names of Vidalytics’ customers; and provide Customer as a customer reference for Vidalytics through a case study.

MODIFICATIONS. We are entitled to modify or update the Services from time to time in order to adapt it technically, to change menu guidances or layouts or to expand or limit functionality in a way that does not materially alter the Services. In addition, this Agreement is subject to change by Vidalytics in its sole discretion at any time. When changes are made, Vidalytics will make a new copy of the Agreement available through the Services. If we make material changes to this Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account or another manner through the Services (which may include posting an announcement on our website). Vidalytics may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you agree to stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). Customer is responsible for regularly reviewing the most current version of this Agreement at any time.

TRADEMARK. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.

Customer Content and License

CUSTOMER CONTENT. As an Account holder, you may submit and publish Customer Content on the Vidalytics Platform. Customer Content is the Content that you upload to the Service. Vidalytics and the Service are passive conduits of the Customer Content. You are exclusively responsible for all Customer Content and the consequences of submitting and publishing your Content on the Service. We do not have the obligation to verify the accuracy, quality, content or legality of Customer Content. We may, but are under no obligation to, monitor, view, or analyze any Customer Content. Except as set forth below, we are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with applicable laws. Vidalytics will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Customer Content. You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Finally, you must be a human. Access to the Services by “bots” or other automated methods is not permitted.

RESPONSIBILITY TO OBTAIN CONSENTS. You are responsible for obtaining all necessary consents, licenses and waivers required to create, record, submit, publish and use Customer Content in connection with the Services. These may include consents, licenses and waivers from: (i) copyright owners, artists, actors, directors, performers, writers, producers or any other individuals appearing in Customer Content; (ii) public performance rights collection organizations (e.g., SOCAN, ASCAP, BMI or SESAC); and (iii) the owners of musical compositions and sound recordings embodied in the Customer Content. In addition, you are responsible to pay all applicable royalties, fees and other amounts owing to any Person in connection with the use of any Customer Content including payments to any labor unions, guilds and public performance rights collection organizations.

OWNERSHIP AND LICENSE. As between you and us, you retain all rights of ownership in the Customer Content. By uploading, displaying or publishing your Content to the Service, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform your Content in connection with the Services. This license is necessary for Vidalytics to perform the Services. For example, without the right to modify Customer Content, we would not be able to format Content to satisfy technical requirements for optimal video playback across various platforms, devices and players. This license allows us to: (i) deliver Customer Content in accordance with the preferences set by Customer utilizing the Vidalytics Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Customer Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivative works of, promote, copy, store, and/or reproduce (in any form) Customer Content on or through the Service; and (iv) utilize Customer Content to test Vidalytics' internal technologies and processes. You also grant us, and allow us to grant each Viewer or other user of the Services, a non-exclusive license to view Customer Content through the Service. We reserve the right to retain (but not display, distribute or publish) server copies of Customer Content that have been removed or deleted from the Services. We also reserve the right to copy, use, modify and publish a copy of any personalized videos that you may create on our website for marketing and promoting our personalized video technology. This does not pertain to the Vidalytics Quick Share feature where Customer’s videos may be viewed on Vidalytics.com, for Customer’s convenience.

RESPONSIBLE USE. You agree to familiarize yourself with the legalities of any actions run through Vidalytics, by visiting the following websites: Federal Trade Commission:http://www.ftc.gov Federal Communications Commission:http://www.fcc.gov DoNotCall Registry Info:http://www.donotcall.gov You agree to familiarize yourself with any additional International, Federal, State, or local laws governing your dialing or any communication using Freedomsoft. You agree to place *ANY* individual requesting DNC status, on Customer’s accounts DNC list, immediately. You agree to provide legal contact information in any outbound campaign within the initial greeting message. You agree to provide your own sound files for all outbound campaigns. You agree to provide all data and with this ability agree to responsibly dial each phone campaign with courtesy to the recipients for which it is meant. You agree to schedule campaigns responsibly. You agree not to send any calls to life-line services, such as hospitals, fire, police, 911, or utility related telephone numbers. You agree to not send any sales outbound broadcasts to recipients that have not consented to receiving such a broadcast. You agree to use DNC / opt-out scrubbing services. You agree to consult with an attorney before dialing any data for which customer is unfamiliar, or if legalities of dialing remain unclear to you.

REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (i) you own or have the necessary licenses, rights, consents and permissions to use and publish the Content you submit; (ii) the uploading of your Content on the Service and the licenses granted to Vidalytics under this Agreement do not and will not violate the rights of any person; and (iii) no payments of any kind shall be due by Vidalytics to any organization for the use or distribution of Customer Content.

PROHIBITED CONTENT. Some Content is prohibited on the Service. You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is highly repetitive and/or unwanted including “Spam” messages; (vii) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (ix) furthers or promotes criminal activity or provides instructional information about illegal activities; (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person; or (xi) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Vidalytics or any third party. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Customer’s Account or access to the Service and/or reporting such Content or activities to law enforcement authorities. Customer must ensure that your Content complies with this Agreement and any other policies and procedures that Vidalytics may implement related to Customer’s submission of any Content through the Services.

CONTENT PRESERVATION AND DISCLOSURE. We may preserve and store Customer Content and/or disclose Customer Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any Customer Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of Vidalytics, Viewers and/or the public.

Customer Data and Viewer Data

CUSTOMER DATA. The Customer Data is property of the Customer and all rights not granted to Vidalytics hereunder shall remain with Customer. You grant us a limited, personal, non-sublicensable, non-exclusive, non-transferable, worldwide right to use Customer Data during the Subscription Term in accordance with the terms and conditions of this Agreement. Customer represents and warrants to Vidalytics that its collection and use of the Customer Data (including Customer Data used by the Service in connection with generating the Non-Anonymized Viewer Data) is and will continue to be in compliance with applicable laws. Except as set out in this Agreement, we will not share any Customer Data with any third parties unless you have given your prior consent. However, sometimes we share Customer Data with third parties that carry out tasks on our behalf (like billing or data storage) provided appropriate restrictions are in place that prevent Customer Data from being used, disclosed or shared consistent with the restrictions set out in this Agreement.

RESPONSIBILITY TO OBTAIN CONSENTS. You are exclusively responsible for obtaining all necessary rights, releases and consents from Viewers and other third parties to allow Customer Data and Viewer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Vidalytics the rights set out in this Agreement to us. We rely on you to obtain all consents from, and provide all disclosures to, Viewers as required under applicable law. By using the Services, you represent and warrant to Vidalytics that you have obtained all necessary rights, releases and consents from Viewers and other third parties to allow Customer Data and Viewer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant us the rights set out in this Agreement.

EXPRESS CONSENT. You will not send, cause to be sent or facilitate the sending of any message using a third party service with data gathered through Vidalytics Play Gates if the recipient to receive such message has not given you prior express consent. However, in the case that you are sending messages that are Spam, you must have acquired the prior express consent from the recipient to receive such message. Under no circumstances will you send Spam or any other message where you obtained the consent of the recipient as a condition to a purchase.

VIEWER DATA. The Service contains software (“Analytics Code”) to track, capture and aggregate anonymized Viewer Data (“Anonymized Viewer Data”) and non-anonymized Viewer Data (“Non-Anonymized Viewer Data”). Through such Analytics Code, we may collect information about you and your Viewers in order to provide the Services, prepare and analyze statistics, produce reports and improve and customize Services. We have the right to use the Anonymized Viewer Data and Non-Anonymized Viewer Data in accordance with and subject to the terms of this Agreement. By using the Services, you grant us a worldwide, non-exclusive, perpetual, royalty-free license to: (i) collect and analyze information about you and your Viewers; (ii) generate statistics and produce reports for you based on such information; and (iii) make recommendations for improving and customizing Services according to Viewer’s preferences, statistics and usage activities. You represent and warrant that you have the full power, authority and all rights necessary to grant us the licenses granted to us under this Agreement and you agree to indemnify, defend and hold us harmless from and against any damages, losses, liabilities and expenses (including reasonable attorneys’ fees) relating to a claim by any Viewer that the collection and/or use of such Viewer Data by us in connection with the Services infringes such user’s rights.

NON-ANONYMIZED VIEWER DATA. You own all rights in the Non-Anonymized Viewer Data and grant us a limited, personal, non-sublicensable, non-exclusive, worldwide right to use the Non-Anonymized Viewer Data during the Subscription Term for the purpose of fulfilling our obligations under this Agreement and providing and customizing the Services. Vidalytics will not share any of the Non-Anonymized Viewer Data with any third parties without the consent of Customer and shall take all reasonably appropriate confidentiality and security measures to protect such Non-Anonymized Viewer Data.

ANONYMIZED VIEWER DATA. We own all rights in the Analytics Code and in the Anonymized Viewer Data. We use Anonymized Viewer Data in order to generate anonymous reports, logs and data regarding the Service and have the right to use and disseminate all Anonymized Viewer Data during or after the Subscription Term for any purpose including without limitation to develop and improve our products and services and to create and distribute reports and other materials. If you enable syndication of Customer Content on third party websites (which Customer may be permitted to do via Customer’s Account), Customer, and not Vidalytics, is solely responsible for notifying each such third party website that Vidalytics may track information regarding the third party’s users and generate Anonymized Viewer Data.

PROCEDURES FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), Vidalytics has implemented procedures for receiving written notification of claimed copyright infringements. If you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf (collectively, the “DMCA Notice”). Contact information for Vidalytics’s Copyright Agent for notice of claims of copyright infringement is as follows: 124 Broadkill Rd #728, Milton, Delaware 19968-1008, United States, Attn: Erika Hernandez Lehmann. When we get your DMCA Notice, we’ll take whatever action we think is appropriate, which may include removing the reported Content from our Services, or terminating a Customer’s Account. If we remove Content in response to a DMCA Notice, we may notify the Customer who posted the Content to the Service so they have the opportunity to send a counter-notice.

Privacy and Security

PRIVACY POLICY. Our collection and use of your information and information regarding Viewers is governed by our privacy policy found at www.vidalytics.com/privacy/ (the “Privacy Policy”). You understand that through your use of the Services, you consent to the collection and use of this information, including the transfer of this information to other countries for storage, processing and use by us. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.

DATA PROCESSING ADDENDUM. To the extent Vidalytics processes Personal Data on your behalf that is subject to data protection laws and regulations applicable to the processing of Personal Data (“Data Protection Laws”), and the parties have not executed a separate data processing agreement that complies with such Data Protection Laws, the Data Processing Addendum located at https://vidalytics.com/dpa is incorporated by reference and shall apply.

SECURITY. The Services are provided by us from data center facilities to which Users have remote access via the internet in conjunction with certain offline components provided by us under this Agreement. We implement security procedures to help protect your Customer Data from security attacks. However, you understand that use of the Services necessarily involves transmission of your Customer Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Customer Data lost, altered, intercepted, copied or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Customer Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If you become aware of any security breach in the Services, you agree to promptly notify us.

NETWORKS. Technical processing and transmission of the Service, including Customer Content, may involve: (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Use of or connection to the internet provides the opportunity for unauthorized Persons to circumvent security precautions and illegally gain access to the Service, the Customer Data, the Viewer Data or the Customer Content. We do not guarantee the privacy, security or authenticity of any content, data or information transmitted over or stored in any system connected to the internet.

MAINTENANCE AND REPAIRS. We use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Also, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or non-scheduled suspension of Services. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.

Third Party Services

THIRD PARTY SERVICES. The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than Vidalytics (“Third Party Services”). For the avoidance of doubt, Third Party Services exclude services whereby Vidalytics has subcontracted its responsibilities hereunder. To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your Accounts to such Third Party Services. You expressly permit us to share Customer Content in conjunction with the Third Party Services and Customer Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather data from you and your Viewers.

RESPONSIBILITY. We are not responsible for any Third Party Services or for any act or omission of any third party. Vidalytics does not own, operate or endorse any Third Party Services and does not warrant any Third Party Services. You agree to assume all risks and liabilities associated with the use of any Third Party Services. Third Party Services are operated independently of us and we do not guarantee the availability of any Third Party Services. If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with Services, Vidalytics may cease providing such features or functionality without entitling Customer to any refund, credit or other compensation. You agree to use the Services only in compliance with the terms and conditions associated with any Third Party Services. We advise you to check the terms of use and privacy policies for all Third Party Services to ensure compliance and determine how they may use your information.

ACCESS TO DATA BY THIRD PARTIES. If you use Third Party Services, your data may be transmitted outside of the Vidalytics system and the provider of the Third Party Services may be able to obtain access to your Customer Data in Vidalytics' systems through the Vidalytics application programming interface. This may result in the disclosure, modification or deletion of your Customer Data by the Third Party Service provider. The Third Party Service provider and its agents may collect and use data pertaining to your configuration and use of the Third Party Service. We are not responsible for any transmission, collection, disclosure, modification, use or deletion of your Customer Data, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.

Representations and Warranties

WARRANTY. Vidalytics warrants that during the Subscription Term the Services will operate without a material failure of the Service to perform in accordance with the Product Overview (a “Defect”). Customer’s exclusive remedy for breach of this warranty is for Vidalytics to correct or work around the Defect upon request, subject to and in accordance with Vidalytics' procedures and limitations regarding support. If the Defect persists in causing a material failure in the Service to conform to the Product Overview without correction or work-around forty-five (45) days after written notice to Vidalytics of a warranty claim, then Customer may terminate the affected Service and Vidalytics shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected Service after the date of termination.

DISCLAIMER OF WARRANTIES. Except for the warranties expressly stated in this Agreement, to the maximum extent allowed by applicable law, Vidalytics disclaims all warranties of any kind, express or implied, including warranties and conditions arising under statute, warranties of merchantability, non-infringement or fitness for a particular purpose.

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. VIDALYTICS DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, VIDALYTICS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

YOU ACKNOWLEDGE AND AGREE THAT VIDALYTICS IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VIDALYTICS LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. VIDALYTICS MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  SURPRIZE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH SURPRIZE PROPERTIES.

Indemnification

BY VIDALYTICS. We will indemnify, defend and hold harmless Customer from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Customer to the extent based on an allegation that Vidalytics' technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in the United States. In no event will we have any obligations or liability under this section arising in whole or in part from any Content provided by Customer, Viewer or other third parties. Vidalytics shall not be required to indemnify Customer in the event of: (a) modification of the Services by Customer, its employees, or contractors in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by Vidalytics if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement. The indemnities above are Customer’s only remedy under this Agreement for third party infringement claims and actions.

CUSTOMER INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Vidalytics from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Vidalytics or its affiliates regarding: (i) Customer Content, Customer Data or Viewer Data; (ii) failure by the Customer to obtain any of the necessary consents required by Viewers under this Agreement; (iii) Customer’s use of the Services in violation of this Agreement; (iv) Customer’s violation of the Agreement; (v) Customer’s violation of any applicable laws, rules or regulations and/or (vi) violations of Customer’s obligations of privacy to any third party.

POSSIBLE INFRINGEMENT. If we believe the Services infringe or may be alleged to infringe a third party’s intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).

PROCESS. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.

Limitations of Liability and Damages

LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF VIDALYTICS UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIDALYTICS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR FOR ANY DAMAGES RESULTING FROM THE LOSS OF USE, DATA, BUSINESS, REVENUE OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF VIDALYTICS KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE FORESEEABLE.

Confidential Information

CONFIDENTIAL INFORMATION. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (together “Confidential Information” of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Customer Data and your Vidalytics ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (v) is required by law. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.

Notwithstanding the foregoing, Vidalytics may retain and use Customer Data, as combined with other Vidalytics customers’ data, solely to improve and/or market the Services, even after termination of the provision of Services to You. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.

Term and Termination

TERM. This Agreement shall commence on the date set out in the first Sales Order and shall remain in effect through the end of the Subscription Term in any current Sales Order, unless terminated earlier pursuant to the terms of this Agreement (the “Initial Term”). Your subscription will automatically renew at the end of the Initial Term for one additional term (the “Renewal Term”) unless you provide us with written notice of your intent not to renew at least 5 business days before the expiration of the Initial Term. Payment for Services for the Renewal Term is due on the first day of the Renewal Term and will automatically be charged to the account that you used for the original subscription. The renewal price will be the same price as for the prior subscription term unless we give you advance notice of a price change.

TERMINATION. Either party may terminate this Agreement effective immediately upon written notice: (i) if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.

EFFECT OF TERMINATION. Upon expiration or other termination of the Service for any reason, your right to access and use the Service shall terminate. If you terminate this Agreement or any Sales Order solely due to a material breach of this Agreement by us, we agree to refund all prepaid fees for the remaining portion of the Subscription Term for the terminated Service within thirty days after the date of termination. If we terminate this Agreement or any Sales Order for your material breach, all fees set out on such Sales Order shall be immediately due and payable.

RETURN OF CUSTOMER DATA. At the end of the Subscription Term, you will be entitled to extract Customer Content stored using the Services, Customer Data and Non-Anonymized Viewer Data for a period of seven (7) days following termination (the “Extraction Grace Period”). Following the Extraction Grace Period, Vidalytics shall have the right to delete all of Customer Content, Customer Data and Non-Anonymized Viewer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of Customer Content, Customer Data and Non-Anonymized Viewer Data which may be retained by us for an archive cycle.

SURVIVAL. Upon termination of this Agreement for any reason, Customer shall pay all amounts owed hereunder. Sections of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.

General Provisions

ELECTRONIC COMMUNICATIONS.  For contractual purposes, you (a) consent to receive communications from Vidalytics in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Vidalytics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

RELEASE. You hereby release Vidalytics and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Vidalytics or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.

ASSIGNMENT.  This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Vidalytics’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

FORCE MAJEURE.  Vidalytics shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

EXCLUSIVE VENUE.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Vidalytics agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Austin, Texas.

GOVERNING LAW.  THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.

NOTICE.  Where Vidalytics requires that you provide an email address, you are responsible for providing Vidalytics with your most current email address.  In the event that the last e-mail address you provided to Vidalytics is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Vidalytics’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Vidalytics at the following address: 124 Broadkill Rd #728, Milton, Delaware 19968, Attn: Legal.  Such notice shall be deemed given when received by Vidalytics by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

WAIVER.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

SEVERABILITY.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

CONSUMER COMPLAINTS.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

ENTIRE AGREEMENT.  This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Contacting Vidalytics

If for any reason you need to contact us, you may email us at hi@vidalytics.com, through our contact form at https://www.vidalytics.com/contact or, if you need to send us any correspondence, our physical mailing address is 124 Broadkill Rd #728, Milton, Delaware 19968.