Posted/Revised: 05 October, 2020
TERMS OF SERVICE
THESE TERMS OF SERVICE WILL GOVERN THE RELATIONSHIP BETWEEN YOU AND MEDIAAGILITY INC., OR THE MEDIAAGILITY INC. SUBSIDIARY FROM WHICH YOU ARE ACQUIRING (DIRECTLY OR THROUGH AN AUTHORIZED CHANNEL PARTNER) THE SERVICES, AS APPLICABLE (“MEDIAAGILITY”).
MediaAgility has developed and is the owner of “Dista,” a cloud-based, Location Intelligence Platform that facilitates Field Force Management, Deliver Optimization, Asset Tracking and other use cases around Location Intelligence (collectively the “Dista Software”).
MediaAgility provides the Dista software along with related infrastructure in a hosted environment provided and maintained by MediaAgility to which you are granted a subscription and access via a web site or another designated IP address (“Services”)
AVAILABILITY OF OUR SERVICES
We are constantly changing and improving the Dista Software and the Services we provide. We may from time to time change or discontinue any of the products or services we offer or add or remove functionalities or features, and we may suspend or stop certain products, services, functionalities or features altogether. If we discontinue certain products, services, functionalities or features, we will give you advance notice where reasonably possible.
We may release products, services, functionalities or features that we are still testing and evaluating. We will label such services as “beta”, “preview”, “early access” or “trial” or any words or phrases with similar meanings. You understand that these beta services are not as reliable as other products or services we offer.
We reserve the right to limit your use of the Services we provide, including the right to restrict, suspend or terminate your account if we believe you are in breach of these terms or are misusing the Dista Software and/or the Services we provide.
We try our best to ensure that our Services are always available, but we do not guarantee that the operation of or access to our Platform will be uninterrupted or continuous. Our Platform may be interrupted for maintenance, repairs, upgrades, network or equipment failures.
CHANGE OF TERMS
We may amend these terms from time to time by posting the updated terms on the Dista Website. If we make material changes, we will notify you of the changes before they become effective. You may choose by written notice to MediaAgility, to reject the amended Terms if the amendments adversely change your rights and terminate your account. By continuing to use your account on the Services after the new changes have taken effect, you indicate your agreement to the amended Terms.
Subject to your complete and ongoing compliance with these Terms, MediaAgility grants to you during the Term, a non-transferable, non-exclusive, worldwide right, without right of sublicense, to (i) access and use the Services; (ii) display and print you Data, and (iii) use the Documentation solely in connection with the Services, all solely for you’s own internal business operations.
You acknowledges and agrees that the license granted hereby in this Terms is subject to all of the following agreements and restrictions:
- You shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Services or the Documentation available to any third party other than an authorized User;
- You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services, including without limitation the Dista Software and or Documentation that are provided as a part thereof, or access the Services or Documentation in order to build a similar or competitive product or service;
- you shall not create Internet “links” to the Services or “frame” or “mirror” any part of the Services, including any content contained in the Services, on any other server or device;
- except as expressly stated herein, no part of the Services or Documentation may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
- unauthorized use, resale or commercial exploitation of any part of the Services or Documentation in any way is expressly prohibited; and
- This Terms is not a sale and does not convey any rights of ownership in or related to the Services, any Base Component or Custom Component, or Documentation to you.
Acceptable Use Policy (“AUP”).
You shall comply with the AUP and shall not:
- use the Services for time-sharing purposes or in any other way allow third parties to exploit the Services;
- provide Services passwords or other log-in information to any third party;
- share non-public Services features or content with any third party;
- access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; or
- engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler.
In the event that it suspects any breach of the requirements of this Section, including without limitation by Users, MediaAgility may suspend your access to the Services without advanced notice, in addition to such other remedies as MediaAgility may have.
You shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. You acknowledge and agree that you are prohibited from sharing passwords and or user names with unauthorized users. You will be responsible for the confidentiality and use of your (including its employees’) passwords and usernames. You will also be responsible for all Electronic Communications, including those containing your Data, and all other data of any kind contained within emails or otherwise entered electronically through the Services or under your account. You agree to notify MediaAgility if you become aware of any loss or theft or unauthorized use of any of your passwords, user names, and/or account number.
Compliance with Laws.
In its use of the Services, you shall comply with all applicable laws, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data and other laws applicable to the protection of your Data.
Users & Services Access.
You will ensure that the use of the Services by your Users is in accordance with the terms of this Terms. You are responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of these Terms that are applicable to you; and (b) any use of the Services through your account, whether authorized or unauthorized.
Transmission of Data.
You understand that the technical processing and transmission of your Electronic Communications are fundamentally necessary to your use of the Services. You expressly consent to MediaAgility’s interception and storage of Electronic Communications and/or your Data, and you acknowledge and understand that your Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by MediaAgility. You acknowledge and understand that changes to your Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. You further understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that MediaAgility is not responsible for any Electronic Communications and/or your Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by MediaAgility.
Privacy and Data Protection
Use of your Data.
Unless it receives your prior written consent, MediaAgility: (a) shall not access, process, or otherwise use your Data other than as necessary to facilitate the Services; and (b) shall not intentionally grant any third party access to your Data, including without limitation MediaAgility’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement without your prior written consent. Notwithstanding the foregoing, MediaAgility may disclose your Data as required by applicable law or by proper legal or governmental authority. MediaAgility shall give you prompt notice of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense. As between the parties, you retain ownership of your Data. You represent and warrant that you have been given or have obtained any and all consents of subjects of personal data as may be required by applicable data privacy laws for the performance of MediaAgility’s obligations under this Terms.
By providing you with the Services, MediaAgility does not acquire any right, title and/or interest in the content material (including but not limited to text, software provided by you, scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that you make available for use by Users by means of the Services (collectively “Content”). You are solely responsible for all Content. Notwithstanding anything to the contrary in these Terms, Content is not included in Confidential Information as defined in these Terms. To the extent, MediaAgility has any access to Content in the course of providing the Services, MediaAgility’s entire obligation to keep Content confidential is stated in this Section below. MediaAgility shall not, intentionally (i) access you’s Content or (ii) disclose you’s Content to any third party, except to the extent: (A) you makes its Content publicly available, (B) as necessary for MediaAgility to provide, or obtain third-party supplier support for the Services or to provide the information requested by you, or (C) as specifically authorized by you in writing.
Risk of Exposure.
You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, you assume such risks. MediaAgility offers no representation, warranty, or guarantee that your Data will not be exposed or disclosed through errors or the actions of third parties.
MediaAgility will have no responsibility or liability for the accuracy of data uploaded to the Services by you, including without limitation your Data, and any other data uploaded by Users.
MediaAgility may permanently erase your Data including your Content if your account is delinquent, suspended, or terminated for 30 days or more. You agree that MediaAgility shall not be liable to you or to any third party for any termination of your access to the Services or deletion of your Data.
IP Rights to the Services.
MediaAgility retains all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services. You recognize that the Services and its components are protected by copyright and other laws. You acknowledge and agree that the Base Components and Custom Components (if any) of the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agrees that the content or information presented to you through the Services may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by MediaAgility, nothing in the Services, the Documentation, or the Terms shall be construed to confer any license or rights to any of MediaAgility’s intellectual property rights, whether by estoppel, implication, or otherwise.
You acknowledge and agrees that MediaAgility shall own all right, title and interest in and to all intellectual property rights in the Services and the Documentation and any suggestions, enhancement requests, feedback, or recommendations provided by you or its Users relating to the Services or the Documentation, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof.
You acknowledge and agree that it does not acquire any rights in the Services or Documentation, express or implied, other than those expressly granted in this Terms and all rights not expressly granted to you are reserved by MediaAgility.
Suspension. MediaAgility reserves the right to suspend your access and/or use of the Services for any account (i) for which any payment is due but remains unpaid; (ii) your use is in violation of these Terms or the Acceptable Use Policy. You agree that MediaAgility will not be liable to you or to any third party for any suspension of the Services under such circumstances as described in this Section.
Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
Effects of Termination. Upon termination of this Agreement, you shall cease all use of the Services and delete, destroy, or return all copies of the Documentation in your possession or control.
Each Party may have access to information that is confidential to the other Party (“Confidential Information”). For purposes of these Terms, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. you’s Confidential Information shall include, but not be limited to, your Data. A Party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without the use of or reference to the other Party’s Confidential Information, as established by written records. These Terms do not transfer ownership of Confidential Information or grant a license thereto. MediaAgility will retain all right, title, and interest in and to all Confidential Information.
The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, you acknowledge and agree that MediaAgility may disclose your Confidential Information to its third-party service providers solely to the extent necessary to provide the Services. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a Party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other Party of the receipt of any subpoena or other request for such disclosure, so as to permit such Party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the Party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED FOR USE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MEDIAAGILITY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) MEDIAAGILITY DOES NOT REPRESENT OR WARRANT THAT THE Services WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) MEDIAAGILITY DOES NOT REPRESENT OR WARRANT THAT THE Services IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE; (d) MEDIAAGILITY DOES NOT REPRESENT OR WARRANT THAT THE HOSTING ENVIRONMENT THAT MAKES THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You shall defend, indemnify, and hold harmless MediaAgility and it’s affiliates, it’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any and all losses, liabilities, damages, costs, and expenses, including reasonable attorney’s fees incurred or awarded as a result of any claim, suit, or proceeding arising out of or related to your alleged or actual use of, misuse of, or failure to use the Services, including without limitation: (a) claims by Users or by your employees, as well as by your own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including your Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Services through your account, including without limitation by your Data; and (d) claims that use of the Services through your account harasses, defames, or defrauds a third party or violates the the law or restriction on electronic advertising. MediaAgility will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MEDIAAGILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP.
Excluded Damages. Except with regard to breaches of Confidentiality obligations NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE SERVICE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notices. MediaAgility may send notices pursuant to these Terms to your email contact points provided by you, and such notices will be deemed received 24 hours after they are sent. you may send notices pursuant to these Terms to firstname.lastname@example.org, and such notices will be deemed received 24 hours after they are sent.
Assignment & Successors. You may not assign this Terms or any of its rights or obligations hereunder without MediaAgility’s express written consent. Except to the extent forbidden in this Section, these Terms will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these Terms invalid or otherwise unenforceable in any respect. In the event that a provision of this Terms is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Terms will continue in full force and effect.
Governing Law. These Terms, and all disputes and claims arising under these Terms, will be interpreted and governed by the laws of India.