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User agreement

Effective May 5, 2020

1. Definitions

Capitalized terms will have the meanings set forth in this Section 1, or in the section where first used in these Terms of Service or the Order Form (if applicable).

1.1 “Affiliate” means any person, corporation, or other entity which controls, is controlled by, or is under common control with a Party to the Agreement as of the Effective Date. A corporation or other entity will be regarded as in “control” of another corporation or entity if it owns or directly or indirectly controls more than fifty percent (50%) of the voting stock or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or other entity. With respect to Customer, “Affiliate” refers only to those Affiliates listed in the Order Form.
1.2 “Agreement” means the Subscription Agreement, which is comprised of:
— these Terms of Service; — Privacy Policy located at Privacy Policy; — each mutually-executed Order Form.
1.3 “Authorized Users” means the Customer’s employees, agents or subcontractors who are authorized to administer the Customer’s use of the Service.
1.4. “Company” means O.N. Dealmedia Ltd.
1.5. “Company Technology” means the Service, the Documentation, and any of the Company’s proprietary technology, including, without limitation, any software, processes, scripts, algorithms, user interfaces, know-how, technologies, designs, and/or other tangible or intangible technical material or information that the Company makes available to the Customer during the course of providing the Service, together with all updates thereto and all Intellectual Property Rights therein.
1.6. “Customer” means the Customer set forth in the Order Form.
1.7. “Customer Account Information” means the information Customer provides upon subscribing to the Service, audit logs, if any, and Customer account settings.
1.8. “Customer Feedback” means suggestions, enhancement requests, recommendations or other feedback provided by the Customer or their Authorized Users relating to the operation or functionality of the Service.
1.9. “Documentation” means all printed and online user manuals and other technical materials relating to the Services made available to the Customer by the Company, as may be updated from time to time.
1.10. “Effective Date” means the date upon which both Parties have entered into this Agreement.
1.11. “Initial Term” means the initial term for the Customer’s use of the Service as specified in the Agreement, beginning on the Service Date.
1.12. “Intellectual Property Rights” means any and all now known or hereafter existing worldwide:

— rights associated with works of authorship, including copyrights, mask work rights, and moral rights; — trademark or service mark rights; — trade secret rights; — patents, patent rights, and industrial property rights; — layout design rights, design rights, and other proprietary rights of every kind and nature other than trade dress, and similar rights; and — all registrations, applications, renewals, extensions, or reissues of the foregoing.

1.13. “Laws” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective Party.
1.14. “Order Form” means the initial order form for Services under the Agreement, if any.
1.15. “Party” or “Parties" means Company and/or Customer, as applicable.
1.16. “Renewal Term” means each recurring twelve (12) month period following expiration of the Initial Term, unless a different time period is specified in the Order Form.
1.17. “Service” means the Company’s database of online bloggers and influencers allowing the Customer to get insights into the online advertising market.
1.18. “Service Date” means the service date specified in the Order Form, as applicable, on which the Company will make the Service available to Customer.
1.19. “Term” means the period of time from the Effective Date, including the Initial Term and all Renewal Terms, until the expiration or termination of the Agreement.
1.20. “Terms of Service” means these Subscription Terms of Service.

2. Access and use of the service

2.1. Subject to the terms of this Agreement and in consideration of (and subject to) payment of the Fees, the Company shall grant the Customer the right to access the Service in accordance with this Agreement. As part of the registration process, the Customer will identify Authorized Users for the Customer's Company account.
2.2. The Customer and each Authorized User shall create a unique password to access the Service. The Customer is responsible for maintaining the confidentiality of all Authorized Users’ credentials. The Company reserves the right to terminate any Authorized User’s credentials that the Company reasonably determines may have been used by an unauthorized third party, and will provide immediate notice of such termination to Customer. Credentials cannot be shared or used by more than one individual Authorized User, but may be reassigned to a new Authorized User replacing a former Authorized User who has terminated employment (or otherwise changed job function) and who no longer uses the Service.
2.3. The Customer may use the Service only in the ordinary course of its internal business operations for the benefit of the Customer and only in accordance with the terms of this Agreement.
2.4. Notwithstanding clause 1.1, the Company:

— does not warrant that the Customer's use of the Service will be uninterrupted, but that any interruptions will be kept within the limits; — does not warrant that information obtained from third party data sources will be error free; — does not warrant that any information obtained by the Customer through the Service will meet the Customer's requirements other than those detailed in this Agreement; — is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays or other problems inherent in the use of such communications facilities; and

2.5. The Customer acknowledges that the Service accesses various third party websites and services and agrees that the Company shall not be responsible for the availability of such third party services, or for the accuracy of any content provided thereby.

3. Restrictions and responsibilities

3.1. The Customer acknowledges that in developing or providing the Services, the Company may utilise pre-existing proprietary methodologies, tools, models, software, procedures, documentation, know-how and processes owned by the Company.
3.2. The Customer agrees that the Company owns all Intellectual Property Rights in the Services. Except as may be expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Services.
3.3. Except to the extent specifically authorised by this Agreement, the Customer shall not, shall not attempt to, and shall not permit any other person under its reasonable control to:

— use any Service for any purpose, at any location or in any manner not specifically authorised by this Agreement; — make or retain any copy of the Service; — re-engineer, reverse engineer, decompile or disassemble the Service; — modify, adapt, translate or create derivative works based upon the Service, or combine or merge any part of the Service with or into any other software or documentation; — refer to, disclose or otherwise use the Service as part of any effort either:

1. to develop a program having any functional attributes, visual expressions or other features similar to those of the Service; or 2. to compete with the Company;

— remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Service, or fail to preserve all copyright and other proprietary notices in any copy of the Service made by the Customer; or — sell, market, license, sublicense, distribute or otherwise grant to any person, including any outsourced service provider, vendor, sub-contractor, consultant or partner, any right to use the Service or allow such other person to use or have access to the Service, whether on the Customer's behalf or otherwise.

3.4. Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations. Customer hereby agrees to indemnify and hold the Company harmless against any damages, losses, liabilities, settlements with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of the Service. Although the Company has no obligation to monitor Customer's use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
3.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
3.6. The Customer warrants that it shall comply with all Applicable Laws in respect to its activities under this Agreement; procure that any person given access to the Service by the Customer shall comply with the terms of this Agreement as if that person were a signatory to this Agreement (and any failure of such person to comply with any provision of this Agreement shall be deemed to constitute a breach of the relevant provision by the Customer).
3.7. The Customer agrees to use the Service solely for the internal use and benefit of the Customer's organisation and not for re-sale or other transfer or disposition to, or use by, or for the benefit of, any other entity or person.

4. Confidentiality; Proprietary rights

4.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public data provided by Customer to Company to enable the provision of the Service ("Customer Data"). The Receiving Party agrees:

— to take reasonable precautions to protect such Proprietary Information, and — not to use (expect in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document

— is or becoming generally available to the public or — was in its possession or known by it prior to receipt from the Disclosing Party, or — was rightfully disclosed to it without restriction by a third party, or — was independently developed without use of any Proprietary Information of the Disclosing Party or — is required to be disclosed by law.

4.2. Customer shall own all rights, titles and interest in and to the Customer Data. Company shall own and retain all rights, titles and interest in and to

— the Service, all improvements, enhancements or modifications thereto, — any software, applications, inventions or other technology developed in connection with Implementation Service or support, and — all intellectual property rights related to any of the foregoing.

4.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to

— use such information and data to improve and enhance the Service and for the other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and — disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.4. Customer agrees and acknowledges that any Intellectual Property Rights in information provided by third party service providers shall be subject to the relevant third party service provider terms and conditions, if any.

5. Payment of fees

5.1. Customer will pay Company the applicable non-refundable fees described in the Order Form for the Service in accordance with the terms therein (the "Fees"). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or the current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
5.2. The Company shall be entitled to increase the Fees at the start of each Renewal Period upon thirty (30) days prior written notice to the Customer and Order Form shall be deemed to have been amended accordingly.
5.3. Customer shall be responsible for all taxes associated with the Service other than taxes based on Company's net income. If the Company is found to have a legal obligation to pay or collect Taxes for which Customer is responsible for under the Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4. All sums payable under this Agreement are exclusive of value added tax ("VAT"), Goods and Services Tax ("GST") or other similar indirect taxes, which will be chargeable, where applicable, on production of a valid VAT/GST invoice by the Company.
5.5. The Company shall issue invoices electronically to the Customer at the email address identified in Order Form. Invoices shall be issued based on the tariff plan chosen by the Customer within seven (7) days after the end of the relevant period (or on such other date as the Company may specify). If electronic transmission of invoices is not legally permissible, the Company shall forward invoices to the billing address designated by the Customer.
5.6. Each properly and accurately prepared VAT/GST invoice shall be payable by the Customer within thirty (30) days following the date on which it is sent to the Customer.
5.7. The Company may charge interest on sums in respect of which the Customer has not sent payment by the invoice due date. Interest shall accrue on a daily basis and shall be paid at a rate of four per cent above the base rate of the Bank of Cyprus (or such other base rate as the Company may specify) from time to time from the due date until the date of payment (inclusive).
5.8. If the Company has not received payment within ten (10) days after the due date for payment has passed the Company may, without liability to the Customer, disable the Customer's credentials and access to the Service and the Company shall be under no obligation to provide any or all of the Services while any such payment remains unpaid.

6. Term and termination

6.1. This Agreement shall commence on the Service Date and shall continue in effect for the initial Service Term as specified in the Order Form, subject to earlier termination as provided below, and shall be automatically renewed for an additional period of the same length as the Renewal Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice, if the other party materially breaches any of the terms or conditions of this Agreement. However, in this case the Company doesn't refund the Client any of the remaining paid amount for the Service.
6.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accused rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. Warranty and disclaimers

7.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall provide the Service in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond the Company's reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Service will be uninterrupted or error free; nor does it make any warrants as to the result that may be obtained from the use of the Service. Except as expressly set forth in this section, the Service is provided "as is" and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
7.2. Each Party warrants that:

— it has, and will at all relevant times have, the requisite power, capacity and authority and all necessary licences, permits and consents to enter into this Agreement and to carry out its obligations contemplated herein; — its execution and performance of this Agreement shall not constitute a violation of any applicable Laws, or of any judgment, order or decree of any court or governmental agency to which it is a Party, or by which it is bound; — it does not have any commitments to third Parties that conflict with its obligations or grants under this Agreement; — it shall perform its obligations under this Agreement in a manner that complies with applicable Laws and will promptly notify the other Party if it receives a written allegation of non-compliance with any applicable Laws by any person.

7.3. Except as expressly stated in this Agreement, all conditions and warranties, express or implied by operation of law or otherwise, are hereby excluded to the fullest extent legally permissible.

8. Indemnity

8.1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service

— not supplied by Company, — that are modified after delivery by Company, — combined with other products, processes or materials where alleged infringement relates to such combination, — where Customer continues alleged infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, — where Customer's use of the Service is not strictly in accordance with this Agreement.

If, due to a claim of infringement, the Service are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company, may, at its option and expense

— replace or modify the Service to be non-fringing provided that such modification or replacement contains substantially similar features and functionality, — obtain for Customer a license to continue using the Service, or — if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8.2. Customer will defend, indemnify and hold harmless the Company and its Affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims of third parties arising from or that are based upon:

— a Customer’s use of the Service in a manner not permitted by the terms and conditions of the Agreement or the Documentation; — a Customer’s non-compliance with Law; or — Customer’s failure to pay any Taxes imposed by taxing authorities as required in Section 5.3.

8.3. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following:

— the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; provided, that failure to provide such prompt notice will not release the indemnifying Party from its indemnity obligations except to the extent the indemnifying Party is materially prejudiced thereby; — the indemnifying Party will have sole control of the defense or settlement of any claim or suit; — the indemnified Party will cooperate with the indemnifying Party (at the indemnifying Party’s expense) to facilitate the settlement or defense of any claim or suit; and — the indemnifying Party will not settle any claim or suit in a manner which results in an admission of liability by the indemnified Party, without the indemnified Party’s prior written consent.

9. Limination of liability

9.1. In no event shall the company be liable to customer for any indirect, incidental, consequential, special or exemplary damages, including lost profits, even if such damages are foreseeable and regardless of whether customer has been advised of the possibility of such damages. In no event shall the company be liable to customer for any amount greater the total aggregate fees paid by the customer or its affiliates pursuant to this agreement in the first 12 months of this agreement. The existence of one or more claims under the agreement will not increase company’s liability. Except where prohibited by law, no claim regardless of form, which in any way arises out of the agreement may be made, nor action based upon such claim be brought by customer, more than one (1) year after the termination or expiration of the agreement. company expressly disclaims all warranties regarding customer services or any portion thereof.

10. Force majeure

10.1. Except for payment obligations, neither party shall be deemed in default of this Agreement, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, armed conflict, labor strike, lockout, or boycott, provided that the Party relying upon this section

— ought to have given the other Party prompt written notice thereof and, in any event, within five calendar (5) days of discovery thereof and — shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of thirty calendar (30) days in the aggregate, either Party may immediately terminate this Agreement.

11. Miscellaneous

11.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
11.3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
11.5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney's fees.
11.6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered, or when receipt is electronically confirmed, if transmitted by facsimile or e-mail.
11.7. Any waiver or failure by a Party to enforce any provision of the Agreement on one occasion will not be deemed a waiver of that or any other provision on that occasion, nor any other occasion.
11.8. This Agreement shall be governed by the laws of the Republic of Cyprus and exclusive jurisdiction of the Courts of Cyprus is hereby expressly acknowledged. In the case of any disputes under the Agreement, the Parties will first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.
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