Please read the following terms carefully. They apply to your use and your company’s use of all or a portion of Medio Products. By accessing and using the Medio Products, you are agreeing on your own behalf and on behalf of your company (“Customer”) to all the terms and conditions listed below as of the date you click “I Accept” (“Effective Date”). If you do not agree to these terms, you may not use Medio Platform.
1. Definitions
“Customer Data” means user activity data collected from the Customer Properties through the Data Collection Service.
“Customer Property” means the web or mobile property owned or controlled by Customer, which is configured to provide Customer Data to the Medio Products through the Data Collection Service.
“Data Collection Service” means Medio’s data collection service (DCS) through which (i) Customer-Medio server integration or (ii) application programming interfaces implemented on the Customer Properties through the Medio Platform SDK will provide data to the Medio Platform .
“Medio Platform SDK” means the software development kit provided by Medio that enables Customer to implement the Data Collection Service on the Customer Properties, as may be updated from time to time by Medio.
“Medio Platform ” means the suite of Medio’s cloud-based analytics and reporting service offering that enables real-time data event logging, data analysis and prediction capabilities, as may be updated from time to time by Medio.
“inSights Active Dashboards” means the reporting functionality made available through the inSights module.
“Medio Products” means the Medio Medio Platform . The licensed Medio Products are the Medio inSight Active Dashboards and the Medio Platform SDK . Upon the execution of an Order Form, Medio Products will include additional products listed in the Order Form.
“Order Form” means a separate order form entered into between Medio and Customer for the commercial, production use of the Medio Products.
2. License Rights.
2.1 Access Rights. Medio grants to Customer a non-exclusive, non-sublicensable, non-transferable, royalty-free right during the License Term to a Customer employee or agent that has the right to access the Medio Products on Customer’s behalf (“User”) with valid User IDs and passwords to (a) access the Medio Products for internal use only and (b) use the Medio Platform SDK and associated documentation solely to configure the Customer Properties to provide Customer Data. Customer agrees to use the most recent version of the Medio Platform SDK provided by Medio and implement changes promptly if a new version of the Medio Platform SDK is provided. Customer may use a reasonable number of unique mobile devices necessary for test and evaluation. Upon the execution of an Order Form, the number of unique mobile devices set forth in the Order Form shall apply. Customer is responsible for all activity by its User IDs. Each party agrees to notify the other party immediately if it has any reason to believe that the security of Customer’s account has been compromised.
2.2 License Restrictions. Customer shall not: (a) damage, disable, knowingly overburden, knowingly impair, or circumvent the Medio Products or security features (or connected network(s)) or interfere with anyone’s use and enjoyment of the Medio Products; (b) modify, reroute, reproduce, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with the Medio Products or attempt to do any of the foregoing; (c) transfer access to the Medio Products in any way; (d) use the Medio Products for third-party commercial time-sharing or service bureau use; or (e) cause or permit any third party to do any of the foregoing.
3. Proprietary Rights.
3.1 Ownership; Updates. Medio reserves all rights and licenses not expressly granted. Medio and its licensors own and shall retain all right, title and interest and all intellectual property rights, in and to the Medio Products, and other materials and information provided (and updates, modifications or changes thereto), except for any Customer Data contained therein. Medio may make improvements to and/or changes in the Medio Products at any time, with or without notice, provided that such changes will not materially degrade the operation of the Medio Products. Customer’s continued use of any part of the Medio Products constitutes Customer’s acceptance of such changes or improvements.
4. Support. Medio support representatives are available by email at support@medio.com during the hours of 8 a.m. to 6 p.m. (Pacific Time), Monday through Friday (excluding holidays).
5. Data; Privacy.
5.1 Customer Data License. Customer grants Medio a worldwide, non-exclusive, irrevocable, non-sublicensable right to store, copy, analyze, and transmit Customer Data in connection with Customer’s use of the Medio Products. Medio has no control over the data provided by Customer. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all such data. Customer shall retain ownership of all Customer Data. Any analysis data provided to Customer by Medio through the Medio Products (“Analysis Data”) shall be owned jointly by Customer and Medio, provided that Medio only use the Analysis Data (a) to provide the results for any given application module of the Medio Products to Customer and (b) internally for statistical and product analysis and development, and product and system maintenance and improvement; provided that Medio will not disclose to any third party any Analysis Data that is solely attributable to Customer, in a way that could identify Customer as the source of the data.
5.2 Security; Privacy. Medio has security measures in place and a privacy policy to protect the loss, misuse and alteration of the information under its control. Customer acknowledges that Medio cannot and does not warrant or guarantee that third parties cannot intercept or modify Customer Data. Notwithstanding the foregoing, each party shall immediately notify the other party if it has reason to believe the security of Customer Data has been compromised. The parties shall cooperate in making any necessary notifications and remediation with regard to such disclosure and/or security breach. Each party will comply with all applicable data privacy and data protection laws, rules and regulations in connection with its obligations under this Agreement. Medio will use Customer Data in accordance with Medio’s privacy policy. Customer will have in place appropriate privacy disclosures informing users of the Customer Properties that will provide Customer Data to third parties. If Customer collects or transmits personally identifiable information (“PII”) of end users in connection with its usage of the Medio Products, it must do so in accordance with all applicable laws.
6. Professional Services. Any professional services provided by Medio (“Professional Services”) will be subject to the terms of this Agreement and set forth in a separate SOW or Order Form. Medio grants to Customer a non-exclusive, non-sublicensable, non-transferable right during the License Term to use the deliverables from any Professional Services.
7. Limited Warranty.
7.1 Medio Warranty; Disclaimer. Medio warrants to Customer that any services and Medio Products will be provided in a workmanlike manner, and that Medio personnel will be trained to provide any services and the Medio Products in accordance with this Agreement. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH, MEDIO AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO MEDIO PRODUCTS, OR ANY PART THEREOF OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
7.2 Customer Warranties. Customer represents and warrants to Medio that (i) Customer is legally authorized to act on behalf of the owner of each Customer Property for the purposes of this Agreement, (ii) Customer has all necessary right, power and authority to enter into this Agreement and (iii) if Customer is using the Medio Products on behalf of a third party, Customer is authorized to act on behalf of such third party, and bind such third party to the terms of this Agreement.
8. Indemnification.
8.1 Medio’s Indemnification. Medio shall defend at its own expense, any claim, action or proceeding brought against Customer based upon a claim that Customer’s use of the Medio Products as contemplated hereunder infringes any U.S. patent, copyright, or U.S. Trademark, or misappropriates any trade secret or other intellectual property of a third party (a “claim”) and pay any and all damages and costs finally awarded against Customer (including reasonable attorneys’ fees and expenses) attributable to such claim. Should the Medio Products become, or in Medio’s opinion be likely to become, the subject of an infringement claim, Medio may, at its reasonable option, (i) procure for Customer the right to use the affected item; (ii) replace or modify the affected item to make it non-infringing; or (iii) remove the affected item, or part thereof, and promptly refund to Customer any fees paid in advance by Customer and terminate this Agreement. Medio assumes no liability hereunder for: (a) any compliance with Customer’s specifications, if the Medio Products would not themselves be infringing or otherwise the subject of the claim but for such compliance; (b) use of other than a current unaltered release of the Medio Products provided to Customer, if use of such current unaltered release would have avoided the infringement; (c) the combination, operation or use of the Medio Products with non-Medio programs, data, or use of Medio Products not in accordance with this agreement, if the Medio Products would not themselves be infringing or otherwise the subject of the claim but for such combination, operation or use.
8.2 Customer Indemnification. Customer shall defend at its own expense, any claim, action or proceeding brought against Medio based upon a claim arising out of or related to (i) the Customer Properties, (ii) Customer’s collection and provision of Customer Data to Medio or (iii) Customer’s breach of the terms of this Agreement, and Customer will pay any and all damages and costs as are finally awarded against Medio (including reasonable attorneys’ fees and expenses) attributable to such claim.
8.3 Indemnification Procedure. The foregoing indemnification obligations require that the indemnified party give prompt, written notice, sole control of the defense and all reasonable information and assistance to the indemnified party (at its expense). The indemnifying party shall not settle any claim that involves a remedy other than the payment of money by the indemnifying party without the prior written consent of the indemnified party.
9. Fees and Payment. Upon the execution of an Order Form, the fees payable to Medio set forth in the Order Form will apply. Unless otherwise specified, all fees are quoted in U.S. dollars, are non-refundable and due within thirty (30) days from the date of invoice. Any good faith undisputed payment or charges by the due date may accrue, at Medio’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Medio may suspend Customer’s access to the Medio Products if Customer’s account is not current or if Customer is in violation of any terms of this Agreement. Customer is responsible for paying all taxes, levies or duties of any nature.
10. Confidentiality.
10.1 Definition of Confidential Information. As used herein, “Confidential Information” means all nonpublic information a reasonable person knows or should understand to be confidential. The pricing terms of this Agreement and the Medio Products shall be the Confidential Information of Medio. Notwithstanding the above, Confidential Information does not include information that: (a) is or becomes public knowledge without a breach of the Agreement; (b) was lawfully known to the receiving party without obligation to keep it confidential, as evidenced by written records; or (c) is received from a third party without being bound by the duty of secrecy in relation to such third party.
10.2 Confidentiality. The receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, except when compelled by law or with the disclosing party’s prior written permission. Each party agrees to use no less than reasonable care to protect the other’s Confidential Information. The receiving party shall ensure those who come into contact with Confidential Information will be bound to terms consistent with this Agreement. If compelled by law to disclose Confidential Information, a party shall provide prior notice (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost. The Medio Products provided to Customer contain confidential trade secret information of Medio and may only be viewed by authorized Users. Unauthorized viewing or disclosure is strictly prohibited. In the event of a breach of any of the provisions contained in this Section, the nonbreaching party may seek injunctive relief to stop the dissemination of confidential information hereunder.
10.3 Feedback. If either party, at any time during the term, provides the other party with comments, suggestions or other feedback regarding bug fixes, enhancements or other modifications to the other party’s products or offerings (“Feedback”), the disclosing party will be deemed to have granted the receiving party a non-exclusive, royalty-free, perpetual, worldwide license to use, and modify all such Feedback as it sees fit.
11. Limitation of Liability. EXCEPT FOR A BREACH OF A PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, IN ANY THEORY OF LIABILITY, EXCEED THE GREATER OF $100,000 OR THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO MEDIO IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. EXCEPT FOR A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
12. License Term; Termination. The license term is forty-five (45) calendar days from the Effective Date (“License Term”). Upon the execution of an Order Form, the License Term set forth in the Order Form will apply. Medio may terminate this Agreement at any time, without cause. Upon the execution of an Order Form, the following termination rights apply: a party may terminate this Agreement for cause (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such thirty (30) day period or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. All provisions of this Agreement which by their nature should survive termination shall survive. Upon termination, Customer shall discontinue use of the Medio Products and within ten (10) days thereafter return to Medio or destroy, at Customer’s expense, the Medio Products, including all copies thereof, and deliver to Medio a written officer certification, as requested by Medio.
13. Publicity. Upon the execution of an Order Form and purchase of the Medio Products for production use, Customer grants Medio a limited, worldwide, non-exclusive, nontransferable, nonsublicensable license to use Customer’s logo and other trademarks on Medio websites and marketing materials. All uses of Customer’s trademarks and related goodwill will inure solely to Customer and Medio will obtain no rights with respect to any of Customer’s trademarks except for the limited license granted in this Section 13.
14. General Provisions. All notices shall be in writing and provided by either electronic or physical mail to Customer at the address provided at the time of registration and to Medio at: 701 Pike Street, Suite 1500, Seattle, WA, 98101, Facsimile No.: (206) 262 3799. This Agreement shall be interpreted according to the federal and state courts of King County, Washington without regard to or application of choice-of-law rules or principles and the parties consent to the personal jurisdiction and venue therein. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. This Agreement may not be assigned by Customer without Medio’s prior written consent. Medio may assign this Agreement without restriction. This Agreement, together with the policies and instructions incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof. If any provision of this Agreement is held to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. All waivers must be in writing and signed by the party waiving its rights and shall not be construed to be a waiver of any other right or remedy. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.