Dataium Services Agreement
This SERVICES AGREEMENT (the “Agreement”) is by and between you (“you” or “your”) and Dataium LLC, a Tennessee limited liability company having its principal place of business at 2525 Perimeter Place Drive, Suite 105, Nashville, TN 37214 (“Dataium”), for the Services (defined below). This Agreement becomes effective when you click on the “I Agree” button.
BY CLICKING “I AGREE,” YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CLICK ON THE “I DECLINE” BUTTON. IF YOU CLICK ON THE “I DECLINE” BUTTON, YOU SHALL NOT BE ABLE TO REGISTER FOR OR USE THE SERVICES OR THIS WEBSITE.
Dataium may revise this Agreement at any time without notice by updating this posting. By using the website or the Services after such posted changes, you agree to be bound by any such revisions and should therefore periodically visit the website and page to determine the then current terms and conditions of use to which you are bound. Any new materials, content, or features on this website shall be subject to this Agreement.
The current version of this Agreement is March 25, 2013. This Agreement applies to your access to and use of the website and the Services, including without limitation, Dataium’s analysis of any materials or data you submit to Dataium. If you breach any of these terms and conditions, your authorization to use the website and Services automatically terminates and you must immediately discontinue use of this website and the Services, and destroy any downloaded or printed materials.
Please read the Dataium Privacy Policy, http://www.dataium.com/policy, which is incorporated in this Agreement by this reference. By using this website or the Services, you agree to be legally bound by the Dataium Privacy Policy, which discusses and governs our collection and use of any information you submit to us.
The material provided by Dataium through the website or otherwise as part of the Services are protected by law, including, but not limited to, United States copyright law and international treatises. All rights to materials included within this website are reserved.
1. SERVICE. By registering for the Service, you grant Dataium permission to (i) install software source code on your website, or if you are an internet service provider, on the websites that you host; or (ii) analyze any data you have already legally collected from your website or any other source and you properly submit to Dataium. Dataium shall, (a) through the installation of its source code on the website, use Web 2.0 technology to collect and analyze data at the user interface, website or application – deliver information on every website visitor and user in all online environments – whatever the device (e.g. mobile, iPhone, PDA, gaming console, etc.) or technology deployed (e.g. webpage, Adobe AIR, Silverlight, Flash, Flex, AJAX etc.) or (b) in the event you submit data and/or materials to Dataium, use Dataium’s suite of data utilities, currently known as VisiCogn™ Collection Utility, VisiCogn™ Knowledge Center, and VisiCogn™ INSITE to analyze such data or materials. Data elements captured or analyzed by Dataium may include, without limitation, all interactions with the website, form field entries, object clicks, browser behavior, navigation, content viewed, search queries, and any other interaction with your website or application. If you install Dataium’s software source code on your website, Dataium shall allow you to use its suite of data utilities, currently known as VisiCogn™ Collection Utility, VisiCogn™ Knowledge Center, and VisiCogn™ INSITE (including the websites, web pages or install-based software available as part of or in connection with such utilities), in either a web-based application or a downloadable form (collectively, the “Service”). The Service shall provide you with insight into consumer behavior, market trends, industry, and competitor performance and permits you to review, report on, or communicate with your website visitors under certain terms and conditions as set forth in this Agreement.
2. System requirements. Use of the Service may require one or more compatible devices, internet access (fees may apply), certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service may involve hardware, software, and internet access, your ability to use the Service may be affected by the performance of any of these factors. High speed internet access is strongly recommended. Accordingly, Dataium does not guarantee that the Service shall be error free or that the Service shall be available 100% of the time. You acknowledge and agree that such system requirements, which may change from time to time, are your responsibility. The Service is not a part of any other product or offering from Dataium or any third party, and no purchase, rental, or obtaining of any other product shall be construed to represent or guarantee access to the Service.
3. Registration.
3.1 Registration Data. You agree to provide Dataium with accurate, current, and complete information required to register you to use the Service and at other points as may be required in the course of using the Service (the “Registration Data”). You further agree to maintain and update your Registration Data as required to keep it accurate, current, and complete. Dataium may terminate your rights to any Service if any information you provide is determined by Dataium to be false, inaccurate, or incomplete. You agree that Dataium may store and use the Registration Data you provide, including payment information for use in maintaining your accounts and billing for any and all fees incurred.
3.2 Internet Service Providers. If applicable, you agree to cooperate with Dataium and provide Dataium with any and all authorizations, written or otherwise, necessary in order for Dataium to provide the Service. Further you agree to provide to any applicable internet service provider such documentation or permissions necessary in order for Dataium to provide the Service.
4. Policies and rules. Your license of any software, technology, reports or any other products and services made available by Dataium through the Service or otherwise is subject to any other terms and conditions required for use of such products and services, all of which are incorporated and made a part of this Agreement by this reference.
5. TERM AND TERMINATION
5.1 Period of Performance. The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with this Section 5.
5.2 Termination for Convenience. Either party may terminate this Agreement by providing the other party with thirty (30) days prior written notice. If you terminate this Agreement without cause, any amount prepaid by you for the Service six (6) months or twelve (12) months in advance shall be forfeited.
5.3 Termination by Dataium. Either party may terminate this Agreement immediately if (a) the other party breaches any term and such breach cannot be remedied, (b) either party breaches a term and it is possible to remedy that breach, but such breach is not remedied within thirty (30) days of being asked in writing to do so, (c) either party ceases to do business, or otherwise terminates its business operations, (d) either party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against you (and not dismissed within 60 days), or (e) if you fail or if Dataium suspects that you have failed, to comply with any of the provisions of this Agreement, including but not limited to, failure to make payment of any fees due, failure to provide Dataium with valid or accurate and complete payment and Registration Data, failure to cooperate with Dataium during the registration process, failure to safeguard your Account information, violation of the Usage Restrictions or any license to the software, or infringement or other violation of third parties’ rights.
5.4 Effect of Termination. In the event of any termination of this Agreement, neither party shall be relieved of its obligations hereunder during the applicable notice period. The rights, duties and responsibilities of each party shall continue in full force during the period of notice. Upon termination or expiration of this Agreement for any reason, (i) the license granted under Section 8 shall terminate; and (ii) the rights and obligations of the parties under Sections 7, 10, 11, 15, 16 and 18 of this Agreement shall survive.
5.5 No Remedy for Termination. Dataium shall not incur any liability whatsoever for any damage, loss, or expense of any kind you suffer or incur by Dataium’s termination of this Agreement (or for any compensation paid to Dataium) arising from or incident to any termination of this Agreement by Dataium which complies with the terms of this Agreement whether or not Dataium is aware of any such damage, loss, or expense.
6. Collection and Use of Information.
6.1 Consent to the Collection and Aggregation of Information. By using the Service, you consent to the collection and use of your information and the data as described in Section 6.2 of this Agreement and as described in the Dataium Privacy Policy.
6.2 Aggregation of Information. Dataium may use your information, including without limitation your website activity history, website data and any other information, materials or data gathered by you and submitted to Dataium, and combine it with information that the Service or Dataium collects from other customers, other customers’ websites, or other information obtained from third parties, to track, analyze and report consumer behavior, including without limitation buying and shopping behavior (past, present and future) across demographics, geography, brands and website technology. If you prefer that Dataium does not collect or use your information in this manner, then you should not use the Service.
6.3 Confidentiality of Information. The collection and/or use of your information shall be in accordance with Dataium’s Privacy Policy, which can be viewed at http://www.dataium.com/privacy.html. Dataium shall not aggregate any of your personally identifiable information and shall not share your personally identifiable information with anyone except you.
6.4 Your Privacy Policy. If you install Dataium’s software source code on your website, you shall ensure that your website, or in the event that you are an internet service provider, any websites that you host, includes a posted privacy policy which clearly and conspicuously states that the website uses a third party service to collect data from the website and includes the following language: “This site is being monitored by third-party monitoring software, and may capture information about your visit that will help us improve the quality of our service”, or words of similar intent which have been agreed to in writing by Dataium. Notwithstanding the preceding sentence, you shall also ensure that any privacy policy contained on your website, or in the event you are an internet service provider, any websites that you host, provides your website visitors with an opportunity to opt-out of your data collection process or, if applicable, specifically provides your website visitors with an opportunity to opt-out of Dataium’s data collection process. http://www.dataium.com/options/
7. OWNERSHIP
7.1 Ownership. Dataium owns all right, title and interest in all proprietary software, included as part of the Service, including all modifications, updates, revisions or enhancements thereto, all associated or related data, media, printed materials, and “online” or electronic documentation, and all intellectual property rights contained therein (the “software”). The Service may also include software owned by third parties, which is supplied under license by Dataium in connection with the delivery of the Service. The owner or developer of third party software supplied by Dataium is appointed by Dataium as agent to enforce any third party license terms directly against you insofar as they relate to such third party software. Dataium acknowledges and agrees that any data and other information (a) inputted into, stored on or processed by the Service originating from your website or if you are an internet service provider, any websites hosted by you, (b) data otherwise provided to or collected by Dataium that is obtained only from your website or websites, or (c) any data, information or materials gathered by you and submitted to Dataium shall at all times remain your property (“Client Property”). You acknowledge and agree that any data analysis, reports, charts and information other than Client Property (a) inputted into, stored on or processed by the Service or by Dataium’s VisiCogn™ Collection Utility, VisiCogn™ Knowledge Center, and VisiCogn™ INSITE data utilities, or (b) otherwise provided to or collected by Dataium that is an aggregation of your data combined with the data of other customers, shall at all times remain or become property of Dataium. Except as provided in this Agreement, no transfer of ownership of any intellectual property rights shall occur under this Agreement.
7.2 Storage. Dataium may store your data for three (3) years. Notwithstanding any other provision in this Agreement, Dataium’s storage of (i) data collected from your website or websites, or (ii) any data gathered by you and submitted to Dataium shall not affect your title to the data. Dataium shall protect all stored data in accordance with the requirements set forth in Dataium’s Privacy Policy and this Agreement.
8. LICENSE
8.1 Grant of License. In exchange for the Service Fee (defined below) you are granted a limited, revocable, non-exclusive, and nontransferable license to (a) install, use, access, display, run, or otherwise interact with copies of the Software made available as part of the Service, on computers, workstations, terminals, handheld PCs, pagers, “smartphones,” or other digital electronic devices, solely for your own internal business purposes and in accordance with the terms of this Agreement, (b) install the Software into web pages within websites or web applications licensed under this Agreement either belonging to you, or hosted by you, managed by you, or developed by you on behalf of another company, and (c) use any data analysis, reports, charts, and information processed by the Service or by Dataium’s VisiCogn™ Collection Utility, VisiCogn™ Knowledge Center, and VisiCogn™ INSITE data utilities..
8.2 Administrative Tools. If applicable, the above license grant includes the right for you to download an install-based version of the Software for your own internal business purposes. The number of instances of the Software that you shall be able to download shall be based on the level of the Service that you choose (i.e. basic, professional or enterprise). Once you receive the Software, it is your responsibility not to lose, destroy, or damage the Software and Dataium shall not be liable to you in the event of any loss, destruction, or damage.
8.3 Restrictions. Your use of the Software and Service is subject to the following restrictions. You shall not, and shall not permit others to, (a) breach this Agreement or any other agreement that you have entered into with Dataium; (b) infringe Dataium’s or any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the object code form or structure of the Software or the Service; (d) provide false, inaccurate or misleading information; (e) initiate any fraudulent transaction; (f) refuse to cooperate in an investigation or provide confirmation of your identity or any information you provide to Dataium; (g) use the Software or the Service in a manner that results in or may result in complaints, disputes, claims, fees, fines, penalties and other liability to Dataium, a third party, or you; (h) facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information you provide through this website or to Dataium; (i) use any robot, spider, other automatic device, or manual process to monitor or copy this website; (j) use any device, software, or routine to bypass any restrictions Dataium places on the Software or Service, or interfere or attempt to interfere, with the Software or the Service; (k) access the Service by any means other than through software provided by Dataium for accessing the Service; (l) take any action that may cause Dataium to lose any of the services from, or interfere with any of the contractual relationships Dataium has with, its internet service providers, payment processors, third party service providers, or other suppliers; (m) use, modify, copy, or otherwise reproduce any Software or the Service in whole or in part; (n) distribute, sublicense, assign, share, timeshare, sell, rent, or lease the Software or Service; or (o) remove any proprietary notices or labels displayed on the Software or Service. All rights not expressly granted to you are reserved by Dataium. There are no implied rights. Dataium reserves the right to modify the Usage Restrictions at any time.
9. Reports. The costs of reports, charts, and other products shall vary based on the level or type of Service you choose, as further specified through the Service and the website. If you request additional reports, charts, and other products, from Dataium or change your level or type of Service, Dataium shall charge the appropriate Service Fee (defined below) to the payment method chosen by you during the registration process and maintained in your Account information.
10. FEES AND PAYMENTS
10.1 Service Fee Payment. You agree to pay for the Service and all Software, reports, charts, and other products included as part of the Service, and you agree that Dataium may charge the payment method indicated in the Registration Data for any products purchased or services ordered, and for any additional amounts (including, but not limited to, taxes and late fees, as applicable) as may be accrued by or in connection with your Account (the “Service Fee”). You are responsible for the timely payment of all fees and for providing Dataium with a valid method of payment for payment of all fees. All fees shall be billed monthly in advance. Service Fee obligations are noncancelable and amounts paid are nonrefundable.
10.2 Packages and Discounts. In addition to any service offered by Dataium whereby Dataium analyzes any data, information or materials you submit to Dataium outside of the Service or the website, Dataium offers three (3) levels of the Service: Basic, Professional, and Enterprise. You may receive Service Fee discounts, as more specifically set forth on the website, for: (i) paying your applicable Service Fee by credit card; (ii) tracking five (5) websites or more; (iii) prepaying in full for six (6) months or twelve (12) of Service or (iv) any other reason Dataium may deem appropriate.
10.3 Right to Change Prices and Availability of Products. Prices, discounts, and availability of any software, report, chart, or other product shall be as set forth on the website and are subject to change at any time.
10.4 Late Fees.
(A) Any undisputed amount that remains unpaid thirty (30) days after due shall be assessed a late payment fee of 1.5% of such amount, calculated monthly. Interest shall be payable from the due date until the date of payment and shall continue to be payable even if Dataium obtains a judgment from a court in relation to any claim for payment of the invoice. You shall also reimburse Dataium for all reasonable costs, fees, and expenses incurred in the collection of any unpaid amounts.
(B) In addition to any other rights or remedies available to Dataium, Dataium reserves the right to terminate this Agreement or suspend your access to the Service if any undisputed amounts remain unpaid thirty (30) days after due. Dataium reserves the right to impose a reasonable reconnection fee if access to the Service is suspended and you later request access to the Service. Dataium shall have no obligation to return your data if any undisputed amount is unpaid. If Dataium terminates the Agreement or suspends access to the Service under this provision, you shall remain liable for monthly fees through the end of the term of this Agreement.
10.5 Invoice Dispute. If you dispute any charges you must advise Dataium in writing of the dispute within thirty (30) days of the date such charge is processed. If such written notice is not received by Dataium by such date, you shall have waived your right to dispute the amount due. Such written notice must contain a detailed explanation of why the amount is disputed and any relevant documentation substantiating your claim.
10.6 Taxes. All charges are exclusive of federal, state and local excise, sales, use, VAT, and other taxes now or hereafter levied or imposed on the Software or services provided under this Agreement. Except for taxes on Dataium’s corporate franchise, net income or net worth, you shall be liable for and pay all such taxes and other levies, including applicable interest or penalties applied by the taxing jurisdiction, whether or not listed on Dataium’s invoices. You are responsible for providing copies of relevant tax exemption or direct-pay certificates to Dataium and you shall reimburse Dataium in full for any of the foregoing taxes or levies which Dataium pays that you are responsible for. All taxes not paid within thirty (30) days from the date of invoice shall bear interest at the highest rate permitted by applicable law.
11. INTERNET
11.1 Use. Your data shall be gathered or entered via the internet and stored within Dataium’s hosting center. Your data shall be maintained within Dataium’s hosting center with separate logical security access to provide confidentiality of data between you and other customers. Access to any of your data within the hosting center via the internet shall be granted solely by you.
11.2 Security. You understand that the Service, including any Software utilized as part of the Service includes a security framework using technology that limits your usage of the Service to certain usage restrictions established by Dataium and its licensors (the “Usage Restrictions”). You agree to comply with such Usage Restrictions as provided in Section 8.3 of this Agreement and you agree not to violate or attempt to violate any security components. You agree not to attempt to or assist another person to, circumvent, reverse-engineer, decompile, dissemble, or otherwise tamper with any of the security components related to such Usage Restrictions. Usage Restrictions may be controlled and monitored by Dataium for compliance purposes, and Dataium reserves the right to enforce the Usage Restrictions with or without notice to you. However, you acknowledge that the internet is an open system and Dataium cannot and does not warrant or guarantee that third parties cannot or shall not intercept or modify your data.
11.3 Account. As a registered user of the Service, you may receive or establish an account (the “Account”). You are solely responsible for maintaining the confidentiality and security of your Account. You should not reveal your Account information to anyone else or use anyone else’s Account. You are entirely responsible for all activities that occur on or through your Account, and agree to immediately notify Dataium of any unauthorized use of your Account or any other breach of security. You shall not impersonate another Dataium customer or provide false identity information to gain access to or use the Service. Dataium shall not be responsible for any losses arising out of the unauthorized use of your Account. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
11.4 Third Party Services and Costs. You are responsible for all expenses and charges associated with accessing the internet and connecting to the Service, any additional software required to connect to the Service, any service fees associated with such access and connection, and for providing all equipment necessary for you to make the connection.
12. AVAILABILITY
12.1 Generally. Dataium uses commercially reasonable efforts to maintain availability of the Service twenty-four (24) hours per day, seven (7) days per week. However, scheduled and unscheduled interruptions do occur. Dataium does not warrant or guarantee uninterrupted availability of the Service. Normal software or hardware upgrades are typically scheduled for nights and weekends and designed to cause a minimal interruption to the Service. You shall be notified of scheduled interruptions in advance. If an unscheduled interruption occurs, Dataium shall assign the appropriate internal and external resources to resolve the problem and return the Service to availability as soon as possible. You agree to cooperate with Dataium during the scheduled and unscheduled interruptions. In no event shall Dataium be liable for any fees, costs damages or other amount incurred by you due to unavailability of the Service.
12.2 Maintenance and Development. Dataium and its licensors reserve the right to modify, suspend, impose limits on certain features and services, restrict your access to parts of the Service, or discontinue the Service or any portion thereof at any time, including the availability of any functional area of the Service. You acknowledge that you may no longer be able to use the Service to the same extent as prior to such change or discontinuation, and that neither Dataium nor any third party shall have any liability to you in such case.
12.3 DATAIUM’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATAIUM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12.4 Reliability. Dataium uses commercially reasonable practices, including redundancy, failover and backup practices, to minimize unplanned interruptions of service and to minimize risk of loss of your data. However, Dataium does not warrant or guarantee that such events shall not occur. Dataium’s sole and exclusive obligation for any loss or damage to the Service or data is to use reasonable efforts to provide you with the most recent backup copy of your data. At termination of this Agreement Dataium shall return data in its standard format at no additional cost. After delivery to you of the data, Dataium shall have no further obligation to you regarding your data.
13. SUPPORT. Dataium shall provide support to you through a variety of systems that may include online and live telephone help, FAQ, and templates. Dataium strives to make the Service the most user friendly Service available. Dataium also strives to make such support tools error-free and readily available. However, Dataium does not warrant or guarantee that the online materials shall be without typographical or functional errors or shall always be available.
14. EXPORT CONTROL. Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority, and not to export, or allow the export or re-export of any proprietary information or software in violation of any such restrictions, laws or regulations, or without all required licenses and authorizations.
15. WARRANTY and LIABILITY
15.1 Warranty. Dataium warrants that the Service shall be provided in a manner consistent with this Agreement and industry standards reasonably applied to the performance of the Service.
15.2 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DATAIUM AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, COVENANT OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, OR ANY DATA. DATAIUM AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE SHALL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE SHALL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ALL ERRORS OR DEFECTS SHALL BE CORRECTED, OR (D) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY DATAIUM AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15.3 DISCLAIMER OF LIABILITY. IN NO EVENT SHALL DATAIUM, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGE, LOSS REVENUE, LOSS PROFITS, LOST OR DAMAGED DATA OR LOST BUSINESS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. DATAIUM’S AGGREGATE LIABILITY TO YOU FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO DATAIUM FOR THE SERVICE DURING THE PRIOR SIX (6) MONTHS.
16. INDEMNITY. By using the Service or otherwise requesting that Dataium analyze any data, information or materials you submit to Dataium outside of the Service or the website you agree to defend, indemnify and hold Dataium, its directors, officers, members, employees, affiliates, agents, contractors, and licensors harmless with respect to any claims arising from your breach of this Agreement, your use of the Service, any action taken by Dataium as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred, any claims arising from your Registration Data or registration process or your failure to cooperate with or corroborate Dataium in registering your website or websites for the Service as well as any claims arising from any data, information or materials you gathered and submitted to Dataium, including, but not limited to, any claims regarding the right of publicity, the right of privacy, or misappropriation or infringement of intellectual property.
17. ELECTRONIC SIGNATURES AND CONTRACTS.
17.1 Electronic Agreements. Your use of the Service includes the ability to enter into agreements or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this website, including, but not limited to, notices of cancellation, policies, contracts, and applications.
17.2 Electronic Records. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
18. MISCELLANEOUS
18.1 Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of Tennessee, excluding its principles of conflict of laws.
18.2 Headings. Headings in this Agreement are for reference purposes only and shall not effect the interpretation or meaning of this Agreement.
18.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect.
18.4 Attorney Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any payment due hereunder, the prevailing party shall be entitled to costs and attorneys’ fees actually incurred.
18.5 Force Majeure. Notwithstanding any provision contained in this Agreement, Dataium shall not be liable to the extent performance of any term or provision of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; or federal, state or municipal action, statute, ordinance or regulation.
18.6 Enforcement of Terms. Dataium reserves the right to take steps Dataium believes are reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement (including, but not limited to, Dataium’s right to cooperate with any legal process relating to your use of the Service or a third party claim that your use of the Service is unlawful or infringes such third party’s rights). You agree that Dataium has the right, without liability to you, to disclose any Registration Data or Account information to law enforcement authorities, government officials, or a third party, as Dataium believes is reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement (including, but not limited to, Dataium’s right to cooperate with any legal process relating to your use of the Service or a third party claim that your use of the Service is unlawful or infringes such third party’s rights).
18.7 No Responsibility for Third-Party Materials or Websites. Certain content, products, and services available via the Service may include materials from third parties. In addition, Dataium may provide links to certain third-party websites. You acknowledge and agree that Dataium is not responsible for examining or evaluating the content or accuracy of any such third-party material or website. Dataium does not warrant or endorse and does not assume and shall not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. Links to other websites are provided solely as a convenience to you. You agree that you shall not use any third party materials in a manner that would infringe or violate the rights of any other party, and that Dataium is not in any way responsible for any such use by you.
18.8 Independent Contractors. In performing any obligation under this Agreement, the parties shall be, and shall conduct themselves as, independent contractors and are not to be considered agents or employees of each other for any purpose.
18.9 Modifications. Dataium reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively, the “Additional Terms”) shall be effective immediately and incorporated into this Agreement. Your continued used of the Services shall be deemed to constitute acceptance of all Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
18.10 Waiver. The failure of Dataium to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
18.11 Dispute Resolution. Any controversy or claim arising out of this Agreement or any dispute between the parties concerning the interpretation of this Agreement, shall first be subject to escalation to appropriate senior management of the parties. Senior management shall use best efforts to reach mutually acceptable resolution of the claim or controversy within thirty (30) days. If the dispute is not resolved within the thirty (30) day period, the dispute may then be filed with the courts.
18.12 Press Release. As a consideration of receiving the licensing rights to use the Software and the Service, you hereby grant Dataium the right to issue a press release announcing your selection of Dataium as the supplier of the services covered by this Agreement. You shall have the right to review and approve the contents of the press release prior to delivery to the media.
18.13 Assignment. You may not assign this Agreement, or any part thereof, without the written consent of Dataium, which consent shall not be unreasonably withheld.
18.14 Notices. Dataium may send you a notice with respect to the Service by sending an email message to the email address in your Dataium Account contact information, by sending a letter via postal mail to the contact address listed in your Dataium Account contact information, or by a posting on the Service. Notice shall become effective immediately.
18.15 No-Third Party Beneficiaries. This Agreement is intended for the sole benefit of the signatories and is not intended to benefit any third party.
18.16 Entire Agreement. This Agreement, including any updates, Additional Terms, software licenses, and Dataium rules or policies, contains the entire agreement and is the exclusive statement of the terms and conditions between the parties with respect to the matters set forth herein and supersedes any other agreements and communications, written or oral, express or implied. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.