GENERAL

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”) identified in one or more Vidalytics sales order documents (“Sales Order” or “Sales Orders”) or made available by us from time to time.

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 of Vidalytics.

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 and (3) our Privacy Policy, found at www.vidalytics.com/privacy/ (the “Privacy Policy”) which is 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 THESE TERMS. 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.

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 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 Managers and Contacts.
“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.
“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 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. We will, in accordance with our Privacy Policy, keep your usernames and passwords confidential.

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 will clearly highlight Beta features/products in its Product or Service to clearly differentiate them from rest of the features. If Customer wishes to use such Vidalytics Beta Product or Service which is in the Beta phase, this clause will govern the use of such Vidalytics Product or Services.
Subject to terms and conditions of this clause, Vidalytics grants Customer a non-exclusive, non-transferable license to use the Vidalytics Beta Product or Service for a period designated by Vidalytics for the purpose of testing and evaluation of such Vidalytics Beta Product or Service by providing Vidalytics with early feedback on the performance of Product or Beta Vidalytics Service, identification of any defects, reporting of any bugs, usability of Product or Service, and ideas for improvement of Vidalytics Beta Product or 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 Product or Service 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 Product or Service, 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 Product or Service will be Customer’s responsibility.
It is hereby clarified that the Vidalytics Beta Product or Service may contain bugs, errors, omissions, and other problems, and Vidalytics will not provide any support and maintenance for its beta Vidalytics Products or Services. The Vidalytics Beta Product or Service 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 Product or Service about any modification or termination of the Vidalytics Beta Product or Service ahead of time, Vidalytics reserves the right to modify or terminate the Vidalytics Beta Product or Service and Customer’s access to the Vidalytics Beta Product or Service for any reason, without notice, at any time, and without any liability to Customer. Once the Vidalytics Beta Product or Service is 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.

FEES AND PAYMENT

FEES. Customer agrees to pay Vidalytics the fees, in the amounts and at the times specified in the selected Plan. For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Services. Unless otherwise agreed between you and us, charges may be paid by wire transfer or credit card.

The fees set forth in the order form created at the outset of Customer’s account shall be effective for the Initial Term and each renewal Term of this Agreement, provided that Vidalytics shall have the right to revise these fees at any time upon thirty (30) days’ written notice to Customer. In the event that Customer does not agree with such fee revision, Customer shall have the right to terminate this Agreement upon fifteen (15) days’ written notice, provided that such notice of termination must be received within thirty (30) days from the date of notice of fee increase.

CREDIT CARD INFORMATION. In order to set up an account with Vidalytics, Customer must provide Vidalytics with accurate and complete billing information including legal name and a valid credit card. Customer's card will never be charged without its authorization. By submitting such credit card information, Customer gives Vidalytics permission to charge all fees incurred through its account to the designated credit card. Vidalytics reserves the right to terminate this Agreement if Customer does not provide a valid credit card for the payment of fees hereunder. Customer further authorizes Vidalytics to use a third party to process payments and to consent to the disclosure of Customer payment information to such third party.

PAYMENT TERMS. The Services are billed in advance on an annual/monthly/quarterly/half-yearly or any other mutually agreed period basis for all recurring fees, depending upon which payment plan is chosen by Customer. Vidalytics will not provide refunds or credits in the case of cancellations, downgrades, or when there are unused portions of the Services on an open account. For any Services upgrade, Customer’s credit card will automatically be charged the new rate for the next billing cycle (i.e., the next month or year), and for those Customers on the yearly payment plan, the additional fee for the Services upgrade for the remainder of the current year will also automatically be charged to the Customer’s credit card. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties without set-off or deduction.

TAXES. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Vidalytics' net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

SUSPENSION RIGHTS. We reserve the right to immediately terminate the Services if: (i) the billing or contact information provided by you is false or fraudulent; or (ii) you fail to make any payment due within 10 business days after we have provided you with notice of such failure. Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement. We will not be liable to you nor to any third party for any suspension of the Services resulting from your non-payment of fees.

Vidalytics reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time by giving at least 60 days’ notice to Customer.

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 licences 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 information to us, for example feedback, comments or suggestions, 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.

RIGHT TO USE LOGO. 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).

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. Customer is responsible for regularly reviewing the most current version of this Agreement at any time. If at any time Customer does not agree with any amendment, modification or supplement to the terms and conditions of this Agreement, Customer may terminate this Agreement for convenience. Customer’s continued use of Customer’s account and/or the services after the notice period will be conclusively deemed to be acceptance by Customer of any such modifications or amendment.

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 a Vidalytics 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 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. 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.

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; (iii) no payments of any kind shall be due by Vidalytics to any organization for the use or distribution of Customer Content; and (iv) if applicable, Customer Content may be uploaded and made publicly available on YouTube or similar services, and that Customer Content otherwise complies with YouTube’s terms of service in effect from time to time, the current version of which may be located at http://www.youtube.com/t/terms or the terms of service of such other similar services to which the Customer Content has been uploaded and made publicly available.

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.

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.

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 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.

PRIVACY AND SECURITY

PRIVACY POLICY. Our collection and use of your information and information regarding Viewers is governed by our 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.

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. We agree to notify you in the event of a detected security breach. All data at rest is encrypted and all data is encrypted in transit.

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.

SUBCONTRACTORS

We may use third party subcontractors to provide limited parts of the Services from time to time, including data storage and processing and content delivery (“Subcontractors”). You consent to us subcontracting these services to the Subcontractors, provided that Vidalytics shall ensure that these Subcontractors comply with the terms of this Agreement applicable to Vidalytics.

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.

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, information or data 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.

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; and/or (vi) violations of Customer’s obligations of privacy to any Person.

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.

EXCLUSIVE REMEDY. The indemnities above are Vidalytics' and Customer’s only remedy under this Agreement for third party infringement claims and actions.

LIMITATIONS OF LIABILITY AND DAMAGES

LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY 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. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (I) EITHER PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS; (II) BREACH OF PRIVACY LAWS AND (III) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED FOR SERVICES.

EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE CUSTOMER NOR VIDALYTICS SHALL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUE OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO EITHER PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS.

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 3.3, 4.1, 4.6, 6.3, 6.5, 10, 11, 12, 13, 14 and 15 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.

CONTACTING VIDALYTICS

If for any reason you need to contact us, you may email us at [email protected], call us at (720) 593-0391 or, if you need to send us any correspondence, our physical mailing address is 340 S Lemon Ave. #5050, Walnut, CA 91789.