Wordsmith for Marketing Terms of Service
Effective July 30, 2014
DESCRIPTION OF THE SERVICE
Wordsmith for Marketing Service. The Wordsmith for Marketing Service includes collection of data from a web analytics provider for your website. If you wish to register for the Wordsmith for Marketing Service, please contact Us at firstname.lastname@example.org. You must provide certain limited information about yourself as prompted to do so by the Service. We reserve the right to refuse access to the Wordsmith for Marketing Service to any user. When you elect to begin a full Wordsmith for Marketing Service account by choosing a plan and adding a credit card through our web application, Wordsmith will automatically charge the credit card you provided or issue you an invoice for amounts due to us. You may also have the option to register for a full year of the Wordsmith for Marketing Service at a discounted rate.
Wordsmith for Marketing Publishing Service. The Wordsmith for Marketing Publishing Service includes the basic Wordsmith for Marketing Service along with other premium features. Wordsmith for Marketing Publishing Service rates vary depending on the needs of your organization. To learn more about the Wordsmith for Marketing Publishing Service, please contact Us at email@example.com. In the event you wish to purchase the Wordsmith for Marketing Publishing Service, no binding agreement regarding the Wordsmith for Marketing Publishing Service will exist between you and Wordsmith unless and until you and Wordsmith execute a Work Order or other agreement governing the provision of the Wordsmith for Marketing Publishing Service (“Work Order”). These Terms of Service and the Work Order will both apply, but in the event of any conflict between these Terms of Service and the applicable Work Order or other agreement, the terms of the Work Order or other agreement shall govern.
Subject to the terms and conditions of this Agreement, Wordsmith grants to you (and you agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Service and (ii) certain proprietary documentation in the form generally made available by Wordsmith to you on the Site for use with the Software (the “Documentation”).
Your use of the Service shall be restricted pursuant to the terms and conditions of this Agreement. You agree to be responsible for the acts and/or omissions of any third party using the Service through your account. Other than as expressly granted above, no other rights are granted, including without limitation any and all Wordsmith patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectable) (“Intellectual Property Rights”). Nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software. All ownership rights, title, and Intellectual Property Rights in and to the Service shall remain in Wordsmith and/or its licensors. You agree that Wordsmith has the right to change, modify, add to, discontinue or retire any aspect or feature of the Service at any time without any obligation to give you notice of any changes. From time to time, Wordsmith may, but is under no obligation to, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.
You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction or where in accordance with the API terms of service; (ii) copy the Software; (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service; or (iv) use the Service in violation of any applicable regulation or law; or (v) ship, divert, trans-ship, transfer, export or re-export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency. You agree to:
- Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
- Not use the Service in a way that prevents or inhibits another user from enjoying the Service;
- Not obtain the communications protocol for accessing the Service;
- Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations (“Branding”), or any electronic notices;
- Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
- Not take any action that imposes an unreasonable or disproportionately large load on our infrastructure;
- Not challenge or assist others to challenge Branding, Intellectual Property Rights or registration or applications thereof;
- Allow the content posted by all users (including you) using the Service to be collected, aggregated and anonymously integrated into the Service, and you acknowledge and agree that we will use aggregated data collected from you and other users for statistical and analytical reporting purposes;
- Allow the Service to be placed on your website(s), and you hereby grant Us a nonexclusive, irrevocable during the term of this Agreement, royalty-free license to perform, or have performed, the Service on your website(s);
- Not provide Us with personally identifiable information of any end users of your website(s); and
- Configure the Software on your website(s) in accordance with Wordsmith’s requirements, including by ensuring that URLs containing personally identifiable information of end users are not captured by the Service. You acknowledge and agree that Wordsmith is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with Wordsmith’s requirements.
By using the Service, you represent and warrant that:
- You have the authority to provide Us with access to data provided by end users of your website(s);
- No data provided by you infringes any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person or entity; and
- No data provided by you violates the legal rights (including the right of privacy) of others or contains any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement.
FEES AND PAYMENT
Except with regard to the Free-Trial Period and any prepaid options, Wordsmith bills its customers in advance on a monthly basis. All amounts due shall be paid in US dollars. Service fees are exclusive of all banking fees and all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties (including any United States income (federal or state) taxes based upon your net income and arising from your use of the Service). You are not responsible for payment of any taxes related to Wordsmith’s net income. In the event you withhold any portion of service fees due to payments to banks or taxing authorities outside the United States, Wordsmith reserves the right to adjust the pricing of the Service so that you are responsible for payment to Wordsmith of the full amount for the Service, net of any such withholdings.
Payments for Wordsmith for Marketing Service. If you register for the Wordsmith for Marketing Service and your account is not canceled during the Free-Trial Period, your credit card will be charged or invoices will be issued to you on a recurring monthly basis starting on the 61st day after your account was initially created (except if you have chosen a prepaid option offered by Wordsmith). Wordsmith will not issue refunds for fees paid for a Wordsmith for Marketing Service account, even for periods of inactivity. Other than for prepaid options, Wordsmith may change the price of the Wordsmith for Marketing Service upon sixty (60) days’ notice to you. Such notice may be provided at any time by posting the changes to the Site. Wordsmith will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Wordsmith for Marketing Service.
Wordsmith for Marketing Publishing Service. If you register for the Wordsmith for Marketing Publishing Service, you will be charged according to the terms of your Work Order.
WORDSMITH MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE AND NONINFRINGEMENT. THE SERVICE IS PROVIDED BY Wordsmith AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES Wordsmith GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. Wordsmith DOES NOT WARRANT THAT THE SERVICE, OR ANY PORTION THEREOF, is ACCURATE, ERROR OR BUG-FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 6 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY Wordsmith FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. Wordsmith MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
LIMITATION OF LIABILITY
IN NO EVENT WILL WORDSMITH AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, cOSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS AND ANY PERSONAL INFORMATION STORED THEREIN, OR SERVER UNAVAILABILITY, in each case HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT AND WHETHER OR NOT Wordsmith WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL Wordsmith’s AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS Wordsmith, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS (INCLUDING THIRD-PARTY CLAIMS) AND EXPENSES, INCLUDING ATTORNEY’S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, and (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU. NOTWITHSTANDING THE FOREGOING, Wordsmith RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
TERM AND TERMINATION
Unless otherwise specified in an applicable Work Order, the term of the license granted herein for the Service shall commence upon the earlier of (i) your implementation or (ii) your agreement to these Terms of Service and may be terminated as set forth herein. Upon termination of this Agreement, all licenses and any other rights and services provided by Wordsmith to you in this Agreement shall cease immediately. Without limiting the other rights of termination referenced herein, We reserve the right to permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of fees. Termination of this Agreement, any license granted hereunder, or your access to the Site, shall not limit Us from pursuing other remedies available to Us, including but not limited to injunctive relief.
Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.
Third-Party Service Providers. Wordsmith may provide the Service directly or indirectly using contractors or other third-party vendors or service providers. Wordsmith will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third-party suppliers or vendors.
Publicity. You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of Wordsmith’s marketing and promotional efforts.
Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: 3 through 10.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.
Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.
No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.
Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be e-mailed, if to Wordsmith, to firstname.lastname@example.org, or if to you, to the e-mail or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective.
Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.