End User License Agreement: Effective as of August 14th, 2013
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU (“You” or “User”) AND CMPLY, INC. (“CMPLY”). BEFORE INSTALLING, ACCESSING, OR USING ANY PART OF CMPLY’S ONLINE SOLUTION(S), YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) AS THEY GOVERN YOUR USE OF THE ONLINE SOLUTION(S) AND ITS AVAILABLE OR RELATED SOFTWARE, DATA, DATABASES, AND SYSTEM (THE “CMPLY PLATFORM”). CMPLY IS WILLING TO LICENSE THE USE OF THE CMPLY PLATFORM TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
TERMS AND CONDITIONS
- LICENSE GRANT. Conditioned on your continued compliance with the terms and conditions of this Agreement, this Agreement provides You with a revocable, limited, non-exclusive, and nontransferable license to use the CMPLY Platform only for your personal or internal business use and for any other the purposes for which CMPLY has permitted in its S.a.a.S. customer contract with You or your employer. This license permits You to (i) use the CMPLY Platform on a single laptop, terminal, workstation, or computer; (ii) access the CMPLY Platform from the Internet or through an on-line network, (iii) load authorized aspects of the CMPLY Platform into your computer’s temporary memory (RAM), and (iv) create printouts of output from the CMPLY Platform. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to You or any third party. If You are using the CMPLY Platform on behalf of a company or other form of legal entity, please note that such a company or entity must have a separate S.a.a.S. agreement with CMPLY regarding access and usage privileges for the CMPLY Platform. Nevertheless, your personal use of the CMPLY Platform will also be subject to the terms and conditions of this Agreement.
- LICENSE GRANT ACKNOWLEDGEMENTS & RESTRICTIONS. This Agreement is for an online service using software. Accordingly, You will not receive a copy of the CMPLY Platform, will not be permitted any access to the programming or source code, and will not have the right to install the CMPLY Platform in or on any other system, network, device, or equipment. CMPLY reserves the right to change or modify the CMPLY Platform in its sole discretion. Moreover, except as provided above, You may not modify, alter, comingle, merge, translate, decompile, create derivative work(s) of, distribute, disassemble, reverse engineer, benchmark, broadcast, transmit, reproduce, attempt to examine the source code for, publish, license, sub-license, transfer, sell, resell, exploit, rent, timeshare, outsource, provide on a service bureau basis, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner or for any purpose not expressly permitted herein the CMPLY Platform or any part thereof. In addition, You may not (i) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal You send to CMPLY on or through the CMPLY Platform; (ii) market, co-brand, private label, or otherwise permit third parties to access, distribute, or use the CMPLY Platform (or any part thereof) without CMPLY’s express, separate, and prior written permission; (iii) use the CMPLY Platform for purposes of credit, employment or other eligibility or entitlement; or (iv) use the CMPLY Platform in an unlawful manner, for unfair or deceptive purposes, or in a manner that could damage, disparage, or otherwise negatively impact CMPLY, such as by sending spam or unsolicited messages in violation of applicable laws, software viruses or other harmful programs or code, or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. In addition, You may not remove or alter any proprietary notice on the CMPLY Platform (or any materials therefrom). All rights not expressly granted to You herein are hereby reserved to CMPLY.
- USER OBLIGATIONS. By installing, accessing, or using the CMPLY Platform in order to view any information and materials or submit information of any kind, You will, at all times, provide true, accurate, current, and complete information when submitting information or materials on the CMPLY Platform, including, without limitation, when You provide information via a registration or submission form. By installing, accessing, and using the CMPLY Platform, You also agree to furnish to or allow CMPLY to collect in a timely manner such necessary information (including, without limitation, certain data regarding usage patterns, personal information (e.g., name, email, etc.), posts, your social connections, and other communications you make publicly available), provide CMPLY reasonable cooperation required for use or implementation of the CMPLY Platform, and to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the CMPLY Platform, including, without limitation, with respect to any and all activities You conduct using available data or under applicable privacy or information security laws, rules, regulations, and industry standards. In addition, You agree to assume all responsibility concerning your use of the CMPLY Platform, including being held responsible for any and all activity occurring through your username and password (and the related account access) and with respect to providing any support and meeting any requirements of your contracts with third parties. CMPLY assumes no responsibility or liability for any claims that may result directly or indirectly from the third party communications or interactions You establish. Failure by You to fulfill any responsibilities under this Agreement at all or in a timely manner for any reason shall entitle CMPLY to act as it deems prudent to mitigate such effects and CMPLY shall be excused from any obligations hereunder to the extent adversely impacted by such failure. Finally, You shall be solely responsible for the information or materials You submit to the CMPLY Platform, for providing the software, hardware, communication links, and connections necessary to access the CMPLY Platform and, unless otherwise agreed by CMPLY, for training yourself with respect to use of the CMPLY Platform. To the extent You request from CMPLY additional support, training, implementation, or other programming work relating to the CMPLY Platform, You must execute a separate S.a.a.S. agreement with CMPLY for such support, training, implementation, or programming work.
- ACCESS POLICY. Use of the CMPLY Platform requires both a username and a password (to be provided by CMPLY) and adherence to particular access requirements as designated by CMPLY for the CMPLY Platform in accordance with this Agreement or any other related agreement with CMPLY. Only one person can use one password. Doing so insures that only You will be able to access your account through the CMPLY Platform. Anyone with knowledge of both your username and password can gain access to the restricted portions of the CMPLY Platform and to your account. Accordingly, by using the CMPLY Platform, You agree to keep your username and password confidential. You also agree not to use another User’s username and password. You will immediately notify CMPLY if You become aware of any loss or theft of your password or any unauthorized use of your username and password (or related account). CMPLY cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. CMPLY reserves the right to delete or change a password at any time and for any reason and will provide You with notice of any changes.
- SECURITY & ENFORCEMENT. You shall not, nor shall You permit any third party to, (i) disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by CMPLY for use of the CMPLY Platform; (ii) use any “deep link,” “page scrape,” “robot,” “spider,” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the CMPLY Platform (or its data) or in any way reproduce or circumvent the navigational structure or presentation of the CMPLY Platform to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the CMPLY Platform; (iii) attempt to gain unauthorized access to any portion or feature of the CMPLY Platform, including, without limitation, the account of another User(s), any other systems or networks connected to the CMPLY Platform, any CMPLY server, or to any of the services offered on or through the CMPLY Platform by hacking, password “mining,” or any other illegitimate or prohibited means; (iv) probe, scan, or test the vulnerability of the CMPLY Platform or any network connected to the CMPLY Platform; (v) reverse look-up, harvest, collect, trace, or seek to trace any information on any other User of the CMPLY Platform; or (vi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the CMPLY Platform or CMPLY’s systems or networks connected to the CMPLY Platform. CMPLY agrees to make reasonable commercial efforts to safeguard the personally identifiable information provided by You from unauthorized access or use. Nevertheless, as it relates to CMPLY, You have no reasonable expectation of privacy while using the CMPLY Platform because CMPLY reserves the right to view, monitor, and/or record activity related to the CMPLY Platform (in accordance with applicable law). CMPLY also reserves the right at any time, and without notice, to modify, suspend, terminate, or interrupt operation of or access to the CMPLY Platform, or any portion thereof, in order to protect the CMPLY Platform or CMPLY’s rights or business. You will immediately notify CMPLY if You become aware of any unauthorized use of the CMPLY Platform. You also acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to CMPLY, such injury would not be quantifiable in monetary damages, and CMPLY would not have an adequate remedy at law. You therefore agree that CMPLY and/or it licensors shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that CMPLY post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to CMPLY to enforce any provision of this Agreement.
- DELIVERY OF DATA. You acknowledge and agree that CMPLY shall not be obligated to incorporate into or process through the CMPLY Platform any data whose technical requirements do not fit within any specified technical parameters. In connection with delivering and providing to CMPLY or allowing CMPLY to collect any data (including, without limitation, collection by CMPLY of certain data regarding usage patterns, personal information (e.g., name, email, etc.), posts, your social connections, and other communications you make publicly available), You hereby grant to CMPLY a non-exclusive, worldwide, royalty-free, right and license to copy, distribute, create derivative works from, display, merge with other data, modify, reformat, transmit, and otherwise use any such data as necessary in connection with CMPLY’s operation, maintenance, and other business purposes of the CMPLY Platform or for reporting, management, and analytical purpose, including, without limitation, for creating or delivering notices or disclosures, confirming certain data points, creating and maintaining accounts, aggregating or merging data with data from other sources and creating databases, and using such data to create scores, provide data analytics, and market products and services to third parties, in any form, media, or technology now known or later developed.
- CLIENT INFORMATION. You shall retain all right, title and interest in and to the particular notice, rule, or disclosure content provided by You or the particular files and data regarding your marketing or campaign programs (collectively, “Client Information”). Client Information, however, shall not be interpreted to include the scores, metrics, and related files created by CMPLY, the data generated anew by the CMPLY Platform (or use thereof) or submitted by other Users, data obtained from sources other than You, data merged or aggregated by CMPLY, or any publicly available data. Accordingly, upon termination or expiration of this Agreement, CMPLY shall destroy or return any Client Information in the form of client logos, trademarks, service marks, or other identifiable marketing materials. But, the foregoing responsibilities are not intended to limit CMPLY’s right to re-use or re-purpose in any manner any personally identifiable or other data obtained from sources other than You, even if the data relates to the same data subjects as data contained in the Client Information.
- PROPRIETARY RIGHTS. This Agreement is for a non-exclusive arrangement and does not preclude CMPLY from making and entering into similar arrangements with others. CMPLY and/or its licensors, as applicable, retain all ownership right, title, and interest in and to all interfaces, programs, software, information, and documentation associated with the CMPLY Platform as well as any data or content compiled, collected, or associated with the CMPLY Platform or with the selection or arrangement thereof. CMPLY, CMPLY Plus Logo Design, and all other names, logos, and icons identifying CMPLY and its products and services are proprietary trademarks of CMPLY and/or its licensors, as applicable, and any use of such marks without the express written permission of CMPLY is strictly prohibited. Except as expressly provided herein, CMPLY does not grant any express or implied right to You or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the CMPLY Platform may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.
- CONFIDENTIALITY. You acknowledge and agree that the CMPLY Platform contains proprietary trade secrets and confidential information of CMPLY and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of CMPLY (and/or its licensors) in a manner consistent with the maintenance of CMPLY’s rights therein, using at least as great a degree of care as You use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
- LINKS TO OTHER SITES. The CMPLY Platform may facilitate access to other sites or on-line social media networks or pages. These sites, networks, or pages have not necessarily been reviewed by CMPLY and are maintained by third parties over which CMPLY exercises no control. Accordingly, CMPLY expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third party Web sites, networks, or pages. Moreover, these links do not imply an endorsement with respect to any third party or any Web site or the products or services provided by any third party.
- MOBILE SERVICES. The CMPLY Platform may include certain tools or services that are available to You via your mobile phone or other mobile device if You have subscribed to or agreed to receive them, including the ability to use your mobile device to receive and reply to messages from CMPLY and access certain other features (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, You are responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices, what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost You.
- FEEDBACK. CMPLY welcomes your feedback and suggestions about CMPLY’s products or services or with respect to how to improve the CMPLY Platform. By transmitting any suggestions, information, material, or other content (collectively, “feedback”) to CMPLY, You represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey such feedback to CMPLY. In addition, any feedback received through the CMPLY Platform will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for CMPLY to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such feedback, and You hereby waive any claim to the contrary.
- WARRANTY DISCLAIMER. CMPLY MAKES NO REPRESENTATIONS OR WARRANTIES TO YOU ON AN INDIVIDUAL BASIS ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, PROGRAMS, PRODUCTS, SERVICES, AND MATERIALS ASSOCIATED WITH OR AVAILABLE THROUGH THE CMPLY PLATFORM FOR ANY PURPOSE. UNLESS OTHERWISE AGREED, THE CMPLY PLATFORM AND ANY SUCH INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANTY RELATED TO THE use, or the results of the use, of the CMPLY PLATFORM or documentation associated therewith in terms of AVAILABILITY, accuracy, SECURITY, reliability, or otherwise. CMPLY DOES NOT WARRANT THAT THE CMPLY PLATFORM WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE CMPLY PLATFORM IS WITH YOU.
- LIMITATION OF LIABILITY. You expressly absolve and release CMPLY from any claim of harm resulting from a cause beyond CMPLY’s control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL CMPLY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE CMPLY PLATFORM BY YOU OR FOR ANY INFORMATION, PROGRAMS, PRODUCTS, SERVICES, AND MATERIALS AVAILABLE WITH OR THROUGH THE CMPLY PLATFORM, OR OTHERWISE ARISING OUT OF UTILIZATION OF THE CMPLY PLATFORM, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF CMPLY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF CMPLY FOR ANY REASON WHATSOEVER RELATED TO YOUR PERSONAL USE OF THE CMPLY PLATFORM OR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED $1,000 (USD).
- INDEMNITY. You agree to defend, indemnify, and hold harmless CMPLY and its employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) relating to or arising from any breach by You of this Agreement.
- GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of New York, U.S.A., as applied to agreements entered into and completely performed in the State of New York. The state or local courts in the State of New York will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue. Any claim You might have against CMPLY arising out of performance under this Agreement must be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred. In addition, You agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and that You and CMPLY each has the right to seek attorneys’ fees in any proceeding. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed.
- TERM AND TERMINATION. This Agreement and your right to use the CMPLY Platform will take effect at the moment You click “I ACCEPT” or You install, access, or use the CMPLY Platform and is effective until terminated as set forth below. This Agreement will terminate automatically if You click “I REJECT” or if You fail to comply with any of the terms and conditions described herein, including, without limitation, by providing any false, inaccurate, untrue, or incomplete information, by exceeding the scope of the license, or by failing to pay in a timely manner any applicable fees, charges, or costs. Termination or expiration of this Agreement will be effective without notice. You may also terminate at any time by ceasing to use the CMPLY Platform, but all applicable provisions of this Agreement will survive termination, as outlined below. Upon termination or expiration, You must return, destroy, or delete from your system all copies of the CMPLY Platform (and any associated materials and data) in your possession. The provisions concerning ownership of intellectual property, feedback, confidentiality, disclaimers of warranty, limitations of liability, termination, governing law, and the miscellaneous terms will survive the termination or expiration of this Agreement for any reason.
- NOTICES. You agree that any notice required to be sent by You to CMPLY shall be sent to the address designated by CMPLY for receipt of communications: email@example.com. CMPLY will provide any notice hereunder to the address you provide to CMPLY as a part of registering to use the CMPLY Platform.