YIELDBOT FOR PUBLISHERS – TERMS OF SERVICE
The following are the terms and conditions for use of the Yieldbot service described herein (the "Service") between Yieldbot Inc. and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). Please read them carefully. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
"Account" refers to the billing account for the Service. All Intent Profiles linked to a single Site will have their Page Views aggregated prior to determining the charge for the Service for that Site.
"Customer Data" means the data concerning the characteristics and activities of visitors to your website that is collected through use of the Yieldbot Tag or a third party API and then forwarded to the Servers and analyzed by the Processing Software.
"Documentation" means any accompanying proprietary documentation made available to you by Yieldbot for use with the Processing Software, including any documentation available online or otherwise.
"Processing Software" means the proprietary Yieldbot Software and any all upgrades to such, which analyzes the Customer Data and generates the Reports.
"Intent Map" means the collection of settings that together determine the information to be included in, or excluded from, a particular Report. For example, an Intent Map could be established to view a small portion of a web site as a unique Report. There can be multiple Intent Maps established under a single Site.
"Report" means the resulting analysis shown at ui.yieldbot.com (or such other URL Yieldbot may provide from time to time) for an individual Intent Map. The number of charts, graphs, and statistics contained in a Report varies with the edition of the Service.
"Servers" means the servers controlled by Yieldbot (or its wholly owned subsidiaries) upon which the Processing Software and Customer Data are stored.
2. FEES AND SERVICES. Subject to Section 15 herein, is provided without charge to you without a pageview/data limitation.
Yieldbot may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs for geographic data, the importing of cost data from search engines, or other fees charged to Yieldbot or its wholly-owned subsidiaries by 3rd party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon your acceptance of such changes that will be posted at ui.yieldbot.com (or such other URL Yieldbot may provide from time to time). Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by Yieldbot will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your account.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY. To register for the Service, You must complete the registration process by providing Yieldbot with current, complete and accurate information as prompted by the registration form, including your e-mail address (username) and password. You shall protect your passwords and take full responsibility for your own, and third party, use of your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify Yieldbot immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, Yieldbot's support staff may log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.
5. CONFIDENTIALITY. "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of your password(s) and user name(s) issued to you by Yieldbot, and for any use or misuse of your account resulting from any third party using a password or user name issued to you. You agree to immediately notify Yieldbot of any unauthorized use of your account or any other breach of security known to you.
8. INDEMNIFICATION. You agree to indemnify, hold harmless and defend Yieldbot and its wholly owned subsidiaries, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against Yieldbot or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Yieldbot or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Brand Features. In such a case, Yieldbot will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Yieldbot reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
9. DISCLAIMER OF WARRANTIES. The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Yieldbot and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Yieldbot does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. Yieldbot does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that Yieldbot and its wholly owned subsidiaries shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Your Website.
THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY YIELDBOT AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. YIELDBOT DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
10. LIMITATION OF LIABILITY. YIELDBOT AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF YIELDBOT AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Yieldbot's (and its wholly owned subsidiaries') total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed U.S. $500.
11. SERVICE LEVELS. Yieldbot does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Yieldbot's (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Yieldbot (or its wholly owned subsidiaries) or Your servers are located or co-located. Complete accuracy in all aspects of your Statistics at all times also is not guaranteed.
13. U.S. GOVERNMENT RIGHTS. If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
14. TERM and TERMINATION. Either party to the Agreement may terminate it at any time and for any reason.
Upon any termination or expiration of this Agreement, Yieldbot will cease providing the Service, and You will delete all copies of Yieldbot code from all Pages and certify thereto in writing to Yieldbot within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.
15. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES. Yieldbot reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement to the site located at ui.yieldbot.com (or such other URL as Yieldbot may provide). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Yieldbot, (ii) You accept updated terms online, or (iii) You continue to use the Service after Yieldbot has posted updates to the Agreement or to any policy governing the Service.
16. MISCELLANEOUS; APPLICABLE LAW AND VENUE. Yieldbot shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the state of New York without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New York law, rules, and regulations, California law, rules and regulations shall prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in New York, New York . The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to Yieldbot must be sent to: Yieldbot Inc., 25 East 21st Street, New York, New York, 10010, USA, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights hereunder without Yieldbot's prior written consent, and any such attempt is void. The relationship between Yieldbot and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 12, 14, and 16.