USE OF THIS SOFTWARE INDICATES LICENSEE’S ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE
These Terms and Conditions of Use constitute is a legal agreement (the “Agreement”) between the individual or entity (“Licensee”) utilizing the Medium One services (collective the “Services”) and Medium One, Inc., a Delaware corporation (“Medium One”). Use of the Services is subject to the terms of this Agreement. By using any portion of the Services, Licensee agrees to be bound by the terms of this Agreement. If Licensee does not agree to the terms of this Agreement, Licensee may not use the Services.
1. LICENSE GRANTS
Medium One, as Licensor grants to the Licensee, a revocable, non-exclusive, non-transferrable, limited right to use the Services in a manner and for the purposes described in the specifications for the Services during the term of Licensee’s subscription. Neither the Services nor any portion thereof may be resold or redistributed in any form whatsoever. All rights not expressly granted to Licensee are reserved to Medium One or its licensors. The Services require data submitted by Licensee (“Licensee Data”) and data derived or created during the scope of Licensee’s provisioning and use of the Services (“Learned Data”). The storage, use and disposition of Licensee Data and Learned Data shall be governed by Medium One’s policies and procedures, including Medium One’s data policy.
Medium One shall retain full and complete title to the Services and all subsequent copies of the Services, regardless of the media or form on or in which the original copies may exist. The License is not a sale of the original Services or any of the underlying material.
All rights, title, and interest in and to the Services (including, but not limited to, any images, photographs, animations, video, audio, music and text incorporated into the Services) and any copies of the Services are owned by Medium One or its suppliers, excepting the Licensee Data. Copyright laws and international treaty provisions protect the Services. Therefore, Licensee must treat the Services like any other copyrighted material. Licensee may not copy the printed materials accompanying the Services. This Agreement does not grant Licensee any rights to trademarks or service marks of Medium One. The Services is licensed, not sold.
4. RESTRICTIONS ON USE
Licensee may not: (a) distribute, share, sublicense, lend, lease or otherwise make the Services available to any third party (on the Internet, an information network or tangible media, by broadcast or in any other manner), (b) modify, adapt, create derivative works from or translate any part of the Services, (c) reverse engineer, decompile or disassemble the Services or otherwise attempt to obtain its source code, (d) remove or alter any copyright, trademark or other proprietary notice contained in the Services or (e) use the Services in any manner not set forth in this Agreement or in the Services’ documentation. In particular, Medium One is not responsible for any disclosure, modification or deletion of Licensee Data resulting from access or use of third party software.
5. THIRD PARTY SOFTWARE
The Services have been developed to operate with other social networking software and technology owned and controlled by third parties. Licensee agrees that (a) Licensee will use such third party sites, services, software or technology in accordance with this Agreement, (b) Medium One does not make any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party sites, services, software or other technology, (c) no third party will have any obligation or liability to Licensee as a result of this Agreement, (d) such third party software may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, (e) any and all third party software or technology that may be distributed or used together with the Services will be subject to Licensee explicitly accepting those separate licensing terms and conditions required for such use. The inclusion of any third party sites, services, software or technology does not imply an endorsement by Medium One of the third party sites, services, software or technology.
Licensee shall: (a) be responsible for the compliance by Licensee’s personnel with the terms and conditions of this Agreement, (b) be responsible for the accuracy, quality and legality of Licensee Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, (d) notify Medium One immediately of any unauthorized access or use Licensee becomes aware of, and (e) use the Services only in accordance with applicable specifications and law.
7. FEES AND PAYMENT
Licensee shall pay all fees or charges (“Fees”) in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. If not otherwise paid in advance, monthly fees for use of Services are due in advance by the first day of the month during which the Services are available for use. All other Fees are due and payable thirty (30) days after date of invoice. Medium One shall be entitled to charge interest on undisputed unpaid Fees more than 30 days overdue at the rate of the lesser of (a) 12% per year or (b) the highest amount permitted by applicable law.
Medium One reserves the right to increase Fees due to verifiable increases in its costs (such as its infrastructure costs or significant changes in market conditions) on at least sixty (60) days notice to Licensee. Medium One reserves the right to increase Fees (i) whenever Licensee increases its use of Services, and (2) with at least sixty (60) days notice prior to an annual renewal for a successive year as provided below in Section 9.
Licensee may not assign any right under this Agreement, including any affiliate, without the prior written consent of Medium One. Any purported assignment by Licensee shall be null and void. To the extent that this prohibition may be unenforceable, any such assignment must be subject to the terms and condition of this Agreement.
9. TERM AND TERMINATION
The term of license grant set forth herein shall commence on the earlier of the date Licensee begins using the software or the date this Agreement is accepted and shall continue for a period of one (1) year, unless the Agreement is terminated in accordance with this Section 9. Thereafter, this Agreement shall automatically renew for successive renewal terms of one (1) year each unless: (i) either Party provides written notice of its intention not to renew at least thirty (30) calendar days prior to the expiration of the then-current term; or (ii) the Agreement is terminated in accordance with this Section 9.
Licensee’s right to use the Services will automatically terminate if Licensee fails to comply with any provision of this Agreement. If this Agreement is terminated Licensee must: (a) cease all use of the Services, (b) destroy the original and all copies of the Services and (c) permanently delete all copies of the Services. Sections 2, 3, 5, 9, 10, 11, 12 and 16 shall survive the termination of this Agreement. Conditioned upon request by Licensee made within 30 days after the effective date of termination or expiration of this Agreement, Medium One will make the Licensee Data available to Licensee for export or download. After the 30-day period, Medium One will have no obligation to maintain or provide Licensee Data, and will thereafter delete or destroy all copies of Licensee Data, unless legally prohibited.
The Services may include confidential information that is secret and valuable to Medium One and its licensors. Licensee is not entitled to use or disclose that confidential information other than strictly in accordance with the terms of this Agreement.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Licensee Data and the Services; and Confidential Information of each party includes the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed the Disclosing Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Licensee shall defend, indemnify and hold harmless Medium One, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from: (i) any breach or alleged breach by Licensee of this Agreement, or (ii) Licensee’s acts, omissions or use of the Services, including without limitation Licensee’s negligent, willful or illegal conduct. Medium One reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, and in such case, Licensee shall cooperate with Medium One’s defense of such claim.
12. LIMITED WARRANTY
THE SERVICES IS PROVIDED "AS IS." TO THE FULL EXTENT ALLOWABLE BY LOCAL LAW, MEDIUM ONE, MEDIUM ONE'S AFFILIATES AND THE THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MEDIUM ONE OR A MEDIUM ONE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. WITHOUT LIMITATION OF THE FOREGOING, MEDIUM ONE AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT: (a) THE SERVICES WILL BE ERROR-FREE, (b) LICENSEE’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (c) THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR (d) THE SERVICES WILL OPERATE WITH THE HARDWARE OR SOFTWARE CONFIGURATION LICENSEE CHOOSES.
13. LIMITATIONS ON LIABILITY
IN NO EVENT WILL MEDIUM ONE, MEDIUM ONE'S AFFILIATES OR THE THIRD PARTY PROVIDERS' LIABILITY TO LICENSEE OR ANY THIRD PARTY EXCEED THE PRICE PAID BY LICENSEE FOR THE PARTICULAR SERVICES IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
14. EXCLUSION OF REMEDIES
WITHOUT LIMITING ANY OF THE DISCLAIMERS OR LIMITATIONS SET FORTH IN PARAGRAPHS 9 AND 10, ABOVE, IN NO EVENT WILL MEDIUM ONE, MEDIUM ONE'S AFFILIATES OR THE THIRD PARTY PROVIDERS BE LIABLE TO LICENSEE OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF LICENSEE’S USE OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, USE OF SOFTWARE OR ANY ASSOCIATED HARDWARE OR SOFTWARE, DATA OR GOODWILL), EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. CERTAIN SPECIFIC RIGHTS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH HEREIN, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE. LICENSEE’S SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION.
16. EXPORT RESTRICTIONS
Licensee agrees that Licensee will comply with all applicable export laws, restrictions and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. or foreign agency or authority. Licensee shall not export or re-export or allow the export or re-export of the Services in violation of any such law, restriction or regulation, including, without limitation, export or re-export to Cuba, Iran, Iraq, North Korea, Sudan, Syria or any other country subject to applicable U.S. trade embargoes, or to any party on the U.S. Export Administration Table of Denial Orders or the U.S. Department of Treasury List of Specially Designated Nationals and Blocked Persons, or to any prohibited destination in any of the Country Groups specified in the then current Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No. 1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations)
Medium One may from time to time make available to Licensee updates for the Services, subject to the terms and conditions of this Agreement, or, in Medium One's sole discretion, Medium One may condition release of such upgrades to Licensee upon Licensee’s acceptance of another Agreement or other execution of a separate agreement. If Licensee should elect to install or otherwise use updates, Licensee’s use of such updates will be subject to the applicable license and the terms and conditions of this Agreement or other agreement.
This Agreement will be binding upon and inure to the benefit of Medium One and Licensee, and their respective successors and permitted assigns. If any provision of this Agreement is determined to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other provision of this Agreement. Any waiver of any breach or failure to enforce any provision of this Agreement will not be deemed a future waiver of such term or a waiver of any other provision. Any waiver of any provision of this Agreement will be effective only if it is in writing and signed by Medium One and Licensee. Medium One may revise these Terms and Conditions of Use on notice to you. The revised Terms and Conditions of Use will be effective when posted.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the United States and the State of California, irrespective of California's conflicts of laws rules. Any action arising out of or relating to this Agreement may be brought exclusively in the appropriate state or federal court in Santa Clara, California, and Medium One and Licensee irrevocably consents to the jurisdiction of such courts and venue in Santa Clara, California.
20. ENTIRE AGREEMENT
This Agreement and the policies referenced herein constitute the complete and exclusive agreement between Licensee and Medium One which supersedes any prior agreement, proposal, written or oral, and any other communication relating to the subject matter of this Agreement.
MEDIUM ONE, INC.
DATA USE POLICY
Medium One, Inc. is committed to protecting the data of customers and users of the Medium One Services (defined below). This Data Use Policy describes the manner in which data submitted through the Services and learned from use of the Services are handled and used. By use of the Services, you expressly consent to the terms and conditions of this Data Use Policy. If you do not agree to the terms of this Data Use Policy, please do not use the Services. Medium One reserves the right to modify this Data Use Policy at any time following thirty (30) days’ notice. Your continued use of the Services following notice, will constitute your acceptance of any revisions of this Data Use Policy.
As used in this Data Use Policy, the following terms shall have the following meanings:
“Data” means data or information, including system-specific data.
“Learned Data” means Data derived or created during the scope of a user’s provisioning and use of the Services.
“Licensee Data” means Data submitted by customers and users of the Services in the course of the provisioning and use of the Services, excluding Learned Data.
“Services” shall mean the services offered by Medium One now or in the future and subject to applicable license.
DATA USAGE AND LICENSE GRANTS
In Medium One’s performance of the Services or in connection with your use of the Services, it may be necessary for Medium One to obtain, receive, or collect License Data. Users control the nature of and amount of License Data submitted through the Services. Users shall retain ownership of all License Data.
You grant Medium One a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the License Data: (1) to facilitate the performance of Services by Medium One or your use of the Services; (2) for the internal business purposes of Medium One such as, for example, the improvement or creation of new software or services; (3) to disclose the License Data to its employees and contractors who are subject to similar confidentiality obligations at least as stringent as those between Medium One and you and who need access to the License Data in connection with any of the foregoing purposes or to perform Medium One’s obligation under this Data Use Policy; and (4) to use any License Data at the aggregate level for the purpose of creating and publishing comparative benchmarks, norms or proprietary algorithms, or marketing and operational purposes, subject to de-identifying reference to you and your end users from any such License Data. You also grant Medium One the right to copy and maintain such material and content on its servers (or the servers of its suppliers) while using the Services or otherwise in accordance with the terms of any applicable license.
You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which you are located in conjunction with Medium One’s performance of the Services or your use of the Services (including providing adequate disclosures and obtaining legally sufficient consent from your employees, agents, and contractors).
Medium One shall own all right, title and interest in and to the Learned Data. You shall have the right to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Learned Data during the term of your active license agreement with Medium One.
Medium One will retain customer data related to its Services for current Licensees for at least two years, unless otherwise specified. Retention of customer data for inactive Licensees will be retained for at least 60 days following termination.
This Data Use Policy will be binding upon and inure to the benefit of Medium One and the users, and their respective successors and permitted assigns. If any provision of this Data Use Policy is determined to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other provision of this Data Use Policy. Any waiver of any breach or failure to enforce any provision of this Data Use Policy will not be deemed a future waiver of such term or a waiver of any other provision. This Data Use Policy shall be governed by the laws of the United States and the State of California, irrespective of California's conflicts of laws rules. Any action arising out of or relating to this Data Use Policy may be brought exclusively in the appropriate state or federal court in Santa Clara, California, and Medium One and users irrevocably consent to the jurisdiction of such courts and venue in Santa Clara, California.