PUREFOCUS PLATFORM TERM OF USE
Date Last Updated: April 24th, 2017
- PUREFOCUS PLATFORM
1.2 Affiliate Use.
1.3 Modifying and Terminating the PureFocus Platform.
PureFocus may make changes to the PureFocus Platform at any time. IF You do not wish to continue to use the modified PureFocus Platform, You may elect to stop using the PureFocus Platform subject to providing PureFocus with seven days written notice of Your election to terminate. You shall remain liable for all Fees through the date of termination.
You and Your Authorized Users shall not:
- knowingly permit access to the Â by anyone other than Your Authorized Users;
- copy, modify, distribute, resell, display, or rent any portion of PureFocus Platform except as permitted under the Agreement;
- attempt to disassemble, duplicate, copy, modify, decompile, frame, mirror, create derivative works from, reverse engineer, or distribute any portion of the PureFocus Platform or permit any third party to do so;
- use the PureFocus Platform to transmit any unsolicited commercial communications unless permitted by law;
- send, store, or transmit data that may violate the intellectual property rights of any third party, or which have been unlawfully obtained;
- send, store, or transmit materials or data into the PureFocus Platform containing Viruses, or use the PureFocus Platform to transmit Viruses to third parties;
- use the PureFocus Platform to store, transmit, or process data that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and PureFocus reserves the right, without liability or prejudice to any other rights, to disable Your access to PureFocus Platform if You violate this Section 1.4(I); and
- except as permitted herein, share with any third parties, any Credentials, account numbers, and account profiles for the PureFocus Platform.
- PROPRIETARY RIGHTS.
2.1 PureFocus and its licensors exclusively own and retain all rights,
title and interest in and to the PureFocus Platform, including all copies of any software used for the provision of the PureFocus Platform and all Intellectual Property Rights therein or relating thereto. All rights not expressly granted to You in the Agreement are reserved by PureFocus.
You hereby grant to PureFocus a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, modify and incorporate Your Feedback into the PureFocus Platform and to further market, distribute and sell the PureFocus Platform with Your Feedback incorporated therein.
2.3 Subscriber Data.
You shall exclusively own all rights, title, and interest in and to the Subscriber Data. You hereby grant to PureFocus a non-exclusive, worldwide, royalty-free, fully paid-up license during the Term of the Agreement and the follow-on period described in Section 8.3(B) to: (i) collect, analyze, use, store, and transmit the PureFocus Platform Data, (ii) combine and aggregate the PureFocus Platform Data with other data to perform the PureFocus Platform, and (iii) to disclose the PureFocus Platform Data as required by law. You grant PureFocus a worldwide, irrevocable, non-exclusive, transferable, fully paid-up, and royalty-free license to aggregate, use, display, reproduce, distribute, and analyze Aggregated PureFocus Platform Data in any format and through any applicable channels for any legal purposes.
2.4 Aggregated Use Data.
- PRIVACY AND DATA SECURITY.
3.1 Personally Identifiable Data.
You may not transfer, or cause to be transferred, or input Personal Data into the PureFocus Platform without notifying PureFocus in writing. To the extent that PureFocus Platform Data is collected by, or on behalf of, You or Your customers from end users by the PureFocus Platform, You represent and warrant that all appropriate consents and waivers have been or will be obtained from such end-user(s).
3.2 Privacy Policies and Opt-outs.
3.3 Data Security and Storage.
PureFocus shall maintain commercially reasonable, industry standard security practices to transmit, store, and process PureFocus Platform Data. In the event of PureFocus Platform Data loss or corruption, PureFocus will use commercially reasonable efforts to restore such lost or corrupted data from the latest backup of PureFocus Platform Data maintained by PureFocus . PureFocus shall not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of PureFocus Platform Data not directly under the control of PureFocus.
PUREFOCUS â€™S EFFORTS TO RESTORE LOST OR CORRUPTED PUREFOCUS PLATFORM DATA PURSUANT TO THIS SECTION, SHALL CONSTITUTE PUREFOCUS â€™S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF PUREFOCUS PLATFORM DATA. PureFocus reserves the right to modify its data storage practices, so long as those modifications do not reduce or diminish those storage practices in effect as of the Effective Date.
- YOUR OBLIGATIONS.
4.1 Marketing Support.
During the Term, You grant PureFocus the right to publish Your corporate logo on its website and in marketing materials that include examples of PureFocus customers and publicly acknowledge You as a PureFocus customer in a press release, the content of which, PureFocus Â and You shall mutually approve in advance. Subject to Your agreement, You may participate in a PureFocus customer case study, provided that PureFocus covers the costs of Your participation.
You are responsible for Your Authorized Usersâ€™ use of the PureFocus Platform. You shall promptly notify PureFocus Â of any suspected or alleged violation of the Agreement by an Authorized User, including any unauthorized use of any password or account or any other known or suspected breach of security of the PureFocus Platform. PureFocus may suspend or terminate any Authorized Userâ€™s access to the PureFocus Platform upon notice to You in the event that PureFocus reasonably determines that such Authorized User has violated the Agreement.
4.3 Telecommunications and Internet Services.
You understand that Your Authorized Users use of the PureFocus Platform is dependent upon Your access to telecommunications and internet services. You must acquire and maintain at Your own expense such telecommunications and Internet services, including, without limitation, any and all fees and taxes of any kind related to the foregoing. PureFocus shall not be responsible or liable for any data loss or corruption, lost communications, or any other losses or damages caused by Your telecommunications and internet service providers or due to Your utilizing telecommunications and internet services.
4.4 Third Party Interactions.
You or Your Authorized Users may maintain accounts with Publishers that may be accessed via the PureFocus Platform. Any such accounts shall be subject to the terms and conditions of Your arrangements with such Publishers, and PureFocus hereby disclaims any and all responsibilities and liabilities related thereto.
In consideration for PureFocus providing the PureFocus Platform, You shall pay to PureFocus those Fees described in the applicable Order Form.
You agree to provide PureFocus with complete and accurate billing and contact information on the Order Form. The Fees shall commence on the Billing Start Date defined on the applicable Order Form.Â Fees will be due even if You do not use the PureFocus Platform during a particular month. At the end of each month, PureFocus will automatically issue an invoice to You, or bill Your credit card for the PureFocus Platform. PureFocus will invoice You in accordance with the Order Form and will either (i) bill You in advance for the Fees and bill You at the end of each month for any Fees in excess of the Fees, or (ii) issue You with a single invoice at the end of each month for all Fees. Each invoice is due and payable as described on the Order Form (theÂ â€œDue Dateâ€).
5.2 API Costs.
If You incur third party API costs through Your use of the PureFocus Platform and such API costs are billed to PureFocus by Your Publishers, PureFocus Â will invoice You the applicable API costs at no additional mark up and You agree to pay PureFocus for such API costs. PureFocus Â will provide You with notice if such API costs are imposed on You.
5.3 Disputes and Overdue Payments.
If You believe in good faith that Your invoice is incorrect, You must contact PureFocus in writing within 10 days of Your receipt of the invoice and describe (in reasonable detail) the amount of the disputed charges and the reason for Your good faith disagreement. If PureFocus has not received payment within 10 days after the Due Date, interest shall accrue on the past due amounts at the rate of one and 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by PureFocus . You shall reimburse PureFocus for the reasonable costs of collection, including reasonable fees and expenses of attorneys. If Your account is 30 days or more past the Due Date, in addition to any of its other rights or remedies, PureFocus reserves the right to suspend the PureFocus Platform, without liability to You, until such amounts are paid in full.
5.4 Bank Fees.
PureFocus shall not be responsible for any fees Your financial institution may impose upon You in the payment of Your invoice (including without limitation any transfer fees).
Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT if applicable) (collectively,Â â€œTaxesâ€). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on PureFocus â€™s net income.
6.1 Definition and Exclusions.
By virtue of this Agreement, the parties may have access to each otherâ€™s Confidential Information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving partyâ€™s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
6.2 Use and Nondisclosure.
During the Term and for a period of three years after expiration or termination of the Agreement, neither party shall make the otherâ€™s Confidential Information available to any third party or use the otherâ€™s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. Each party shall take all reasonable steps to ensure that the otherâ€™s Confidential Information is not disclosed or distributed by its employees or agents in violation of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the otherâ€™s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agencyâ€™s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agencyâ€™s authority to receive such Confidential Information. Furthermore, You acknowledge and agree that, upon expiration or termination of the Agreement, PureFocus shall either destroy or deliver PureFocus Platform Data back to You pursuant to Section 8.3, and shall have no other obligation to You regarding such Subscriber Data under this Agreement.
7.1 Warranty for PureFocus Platform.
PureFocus warrants that the PureFocus Platform shall perform materially in accordance with the Documentation, which may be updated from time to time by PureFocus , and the PureFocus Platform will not contain or transmit to You any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
7.1, PUREFOCUS Â DISCLAIMS ANY WARRANTY THAT THE PUREFOCUS PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PUREFOCUS Â FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PUREFOCUS PLATFORM AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PUREFOCUS FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PUREFOCUS OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
- TERM AND TERMINATION
8.2 Termination for Cause.
Either party may terminate this Agreement upon written notice: (A) if the other party materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach; (B) if there is an adjudication of bankruptcy of any party under any bankruptcy or insolvency law; or (C) if a receiver for business or property of the other property is appointed or the other party makes any general assignment for the benefit of its creditors. PureFocus may terminate a trial account or free account at any time in its sole discretion.
8.3 Rights and Obligations Upon Expiration or Termination.
(A) Upon expiration or termination of this Agreement: (i) Your and Your Authorized Users right to access and use the PureFocus Platform shall immediately terminate; (ii) You and Your Authorized Users shall immediately cease all use of the PureFocus Platform; and (iii) the parties will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.
(B) PureFocus will destroy or dispose of Your PureFocus Platform Data in its possession unless PureFocus receives, no later than 30 days after the expiration or termination date, a written request to deliver to You the then-most recent back-up of Your PureFocus Platform Data. PureFocus shall make commercially reasonable efforts to deliver the back-up copy to You within 30 days of receipt of such request. If requested by PureFocus, You shall pay reasonable expenses incurred by PureFocus in returning Subscriber Data to You. You agree and acknowledge that PureFocus has no obligation to retain and may delete Your PureFocus Platform Data after 30 days from the expiration or termination date of the Agreement. PureFocus may retain all Aggregated Subscriber Data upon termination or expiration of the Agreement.
(C) Notwithstanding the foregoing, if the Agreement is terminated as a result of Your breach, PureFocus shall have no obligation to deliver any copy of the PureFocus Platform Data to You, and may delete such PureFocus Platform Data at any time after termination of the Agreement.
(D) Upon expiration or termination of this Agreement, PureFocus Â shall stop using Your corporate logo; provided, however, (i) PureFocus Â shall have a reasonable time to remove Your corporate logo from PureFocus â€™s website as well as from any promotional materials, (ii) PureFocus shall be entitled to distribute all of the promotional materials printed during the Term that include Your corporate logo, and (iii) PureFocus Â shall not be required to remove any such printed materials from circulation.
Section 5 shall survive any expiration or termination of this Agreement for so long as either of the parties has any rights, duties or obligations thereunder. Sections 1.2, 2, 3, 6, 8.3, 8.4, 9, 10 and 11.1 shall survive any expiration or termination of this Agreement.
Each party (anÂ â€œIndemnifying Partyâ€) will indemnify, defend, and otherwise hold harmless the other party (theÂ â€œIndemnified Partyâ€), its officers, directors, employees, agents, and subsidiaries from and against any claim or suit brought by a third party against the Indemnified Party relating to, or resulting from, the Indemnifying Partyâ€™s breach or alleged breach of this Agreement or any of the Indemnifying Partyâ€™s representations and warranties hereunder or violation of a third partyâ€™s Intellectual Property Rights. The Indemnified Party will promptly notify the Indemnifying Party of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts the Indemnified Party in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement will require the Indemnified Party’s written consent (to be granted or withheld at the Indemnified Partyâ€™s sole discretion) and the Indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
- LIMITATION OF LIABILITY.
Â EXCEPT FOR LIABILITY ARISING FROM A PARTYâ€™S BREACH OF ITS OBLIGATIONS HEREIN REGARDING CONFIDENTIAL INFORMATION, A BREACH OF SECTION 1.4 (RESTRICTIONS), OR IN CONNECTION WITH THE INDEMNIFICATION OF THIRD PARTY CLAIMS RELATING TO INFRINGEMENT OF A THIRD PARTYâ€™S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND (B) IN NO EVENT SHALL PUREFOCUS â€™S AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS TO AND USE OF THE PUREFOCUS PLATFORM EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID OR PAYABLE BY YOU IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
11.1 Governing Law.
Unless otherwise specified in the attached Country Schedule, the Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws provisions; provided that the Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act, even if that law is adopted in California. If You are outside of the United States, the parties agree that rights and obligations of the parties under the Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the courts located Los Angeles, California. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.2 Waiver and Severability.
The waiver by either party of any default or breach of the Agreement shall be in writing and shall not constitute a waiver of any other or subsequent default or breach. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
11.3 Force Majeure.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of Fees due) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each aÂ â€œForce Majeure Eventâ€). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.4 Compliance with Laws.
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, the applicable export laws and regulations of the United States.
11.5 Relationship Between the Parties.
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the otherâ€™s behalf without such other partyâ€™s prior written consent.
Neither party may assign this Agreement without prior written consent of the other party unless in connection with a merger, acquisition, or sale of all or substantially all of PureFocus â€™s or Your assets, and provided that the surviving entity has agreed to be bound by this Agreement. Notwithstanding the foregoing, PureFocus Â may assign this Agreement to any of its Affiliates without Your prior consent.
11.7 Entire Agreement.
11.9 Equitable Relief.
11.10 No Third-Party Beneficiaries.
Unless specified otherwise in the Agreement, no third party shall have any rights or obligations under the Agreement.
PureFocus Â may give notice to You by e-mail to Your e-mail address on record in PureFocus â€™s account information. You may give notice to PureFocus Â by sending an email toÂ firstname.lastname@example.org