DYNAMO. AI, INC. (“Dynamo”) Terms of Service
Last Updated: February 23, 2017
PLEASE READ THESE TERMS OF SERVICE OF USE CAREFULLY. THESE TERMS OF SERVICE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING ANY OF THE SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THESE TERMS OF SERVICE. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN YOU MAY NOT USE THE SERVICES.
TERMS OF SERVICE
- Provision of Product. Dynamo will provide Customer with access to its Data Intelligence product in accordance with terms and conditions of this Agreement and the specific product offering set forth on the Order Form executed by the parties in connection with this Agreement (the “Product”). In order to use the Product, Customer is responsible at Customer’s own expense for (a) providing Dynamo with access to the Data Partner’s API in order to allow Dynamo to access Customer’s data; and (b) for providing its own access to the Internet, either directly or through devices that access Web-based content, and for paying any fees associated with such access.
- License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, Dynamo hereby grants to Customer a non-exclusive, non-transferable, revocable license for Customer’s Users (as defined below) to access and use the Product with respect to the number of Data Partner Users for which Customer has paid fees, solely for Customer’s internal business purposes and solely for the specific Product offering indicated on the Order Form. A “User” shall mean an employee, or independent contractor of Customer. This license is restricted to use by Customer and its Users and does not include the right to use Dynamo Technology (as hereinafter defined) on behalf of any third party or the right to permit any non-User to access or use the Product. Customer also agrees to be bound by any further restrictions set forth on the Order Form. If the number of Customer’s Data Partner Users increases, Dynamo reserves the right to charge additional fees for the increased scope of use. All rights not expressly granted to Customer are reserved by Dynamo and its licensors. There are no implied rights.
- Dynamo Technology. In connection with the delivery of the Product, Dynamo shall operate and support the hosted environment used by Dynamo to deliver the Product, including, without limitation, the Dynamo Technology (as hereinafter defined), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other information developed or provided by Dynamo or its suppliers under this Agreement. For purposes of this Agreement, “Dynamo Technology” means all of Dynamo’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Dynamo in providing the Product.
- Downtime. Subject to the terms and conditions of this Agreement, Dynamo shall use commercially reasonable efforts to provide access to the Product for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Customer agrees that from time to time the Product may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Dynamo may undertake from time to time; or (iii) causes beyond the control of Dynamo or which are not reasonably foreseeable by Dynamo, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Dynamo shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. Dynamo shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. Dynamo shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
- Restrictions. Unauthorized use, resale or commercial exploitation of the Product in any way is expressly prohibited. Without Dynamo’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Dynamo Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or the Dynamo Technology to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions of this Agreement, and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to Dynamo’s other remedies hereunder, Dynamo reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Product if Dynamo can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in this Agreement.
- Customer acknowledges and agrees that (i) as between Dynamo and Customer, all right, title and interest in and to the Dynamo Technology and the Product and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith) are and shall remain Dynamo’s or its licensors’, and this Agreement in no way conveys any right or interest in the Dynamo Technology or the Product other than a limited license to use the Product in accordance herewith, and (ii) the Dynamo Technology and the Product are works protected by copyright, trade secret, and other proprietary rights and laws. The Dynamo name, the Dynamo logo, and the product names associated with the Product are trademarks of Dynamo or third parties, and no right or license is granted to use them. Customer shall not remove any Dynamo trademark or logo from the Product.
- Payment of Fees; Taxes. Customer shall pay to Dynamo the fees specified and in accordance with the schedule set forth on the applicable Order Form. If Customer pays fees by credit card, Dynamo will charge the credit card the applicable fee in advance, at the frequency set forth in the Order Form. Customer remains liable for any fees which are rejected by the card issuer or charged back to Dynamo. If fees are invoiced, amounts are due thirty days from date of invoice. Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product, except for taxes based on Dynamo’s net income. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Dynamo to collect any unpaid amounts owed by Customer.
- Customer Data. All data and content which the Customer makes available to Dynamo in connection with this Agreement, including data provided via use of the Data Partner’s API (the “Customer Data”) is stored in a private and secure fashion, and will not be used by Dynamo except as necessary to provide the Product. Customer hereby grants to Dynamo a limited, non-exclusive, non-transferable, royalty-free right to use, display, transmit and distribute the Customer Data solely in connection with providing the Product to Customer. In addition, unless the Order Form specifies that Customer is not participating in benchmarking, Dynamo may analyze Customer Data, and data of other customers, to create aggregated statistics that do not identify Customer or any individual, and Dynamo may use and disclose such statistics in its discretion. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Dynamo shall operate the Product in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Customer acknowledges that Customer Data obtained by Dynamo using the Data Partner’s API will be transmitted outside Data Partner’s system, and to such extent the Data Partner is not responsible for the privacy, security or integrity of such data.
- Customer Responsibilities. Customer is solely responsible for all Customer Data. Dynamo does not guarantee the accuracy, integrity or quality of such Customer Data. Customer shall not: (a) upload or otherwise make available to Dynamo any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Dynamo any Customer Data that Customer does not have a right to transmit under any law or under contractual relationships; (c) use, upload or otherwise transmit any Customer Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (d) upload or otherwise make available to Dynamo any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Product or Servers or networks connected to the Product; (f) upload or otherwise make available to Dynamo any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder; or (g) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Trade Commission, any rules of any securities exchange, and laws regarding the export of technical data.
- Warranties. (a) Customer represents and warrants that: (i) Customer Data and its use by Dynamo as permitted by this Agreement will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) Customer has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement, and; (iii) Customer shall comply with all laws, regulations and rules applicable to Customer and its use of the Product. (b) Except as expressly permitted in this Agreement, Customer shall not, and shall not permit others to, (i) remove any proprietary notices or labels on the Products (including without limitation, any copyright, trademark notices), or (ii) use the Product other than as expressly permitted hereunder. (c) Dynamo warrants that it will provide the Product in a competent and workmanlike manner. Dynamo does not warrant that it will be able to correct all reported defects or that use of the Product will be uninterrupted or error free. Dynamo makes no warranty regarding features or products provided by Data Partner or any other third parties. Dynamo retains the right to modify its products and services at its discretion provided that doing so does not have a material adverse impact on the Product hereunder. Customer’s sole remedy for Dynamo’s breach of the warranty in this paragraph shall be that Dynamo shall remedy the applicable error, or if Dynamo is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Product for the period during which the breach of warranty occurred. (D) CUSTOMER acknowledges and agrees that except for the express warranties provided in this SECTION 10, all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom or trade and including all implied warranties of merchantability or fitness for a particular purpose, are hereby expressly excluded and disclaimed by Dynamo. NO DATA PARTNER MAKES ANY representations or warranties with respect to Dynamo’s performance under this agreement.
- Limitation of Liability. (A) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, DYNAMO’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO DYNAMO UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. (B) CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL DYNAMO OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, TECHNOLOGY PARTNERS, AFFILIATES, OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR THE LOSS OF ANTICIPATED PROFITS OR REVENUES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. (C) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT DYNAMO HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.
- Indemnification. (a) Dynamo, at its expense, shall defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that the Product infringes any copyright or trade secret of any third party. Dynamo shall pay any award against Customer, or settlement entered into on Customer’s behalf, based on such infringement, but only if Customer notifies Dynamo promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits Dynamo to control the defense and settlement thereof. If a claim of infringement or misappropriation occurs, or if Dynamo determines that a claim is likely to occur, Dynamo shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to Dynamo, Dynamo may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, Dynamo has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or Dynamo’s written directions or policies; or (y) any third party data or content or any Customer Data. THIS SECTION STATES THE ENTIRE LIABILITY OF Dynamo AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT BY THE PRODUCT. (b) Customer shall defend, indemnify, and hold Dynamo harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against Dynamo and its employees and affiliates arising from or connected with (i) any claim that the Customer Data infringes, violates or misappropriates any third party intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by Customer. (c) The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party sole control of the defense of any claim, suit or proceeding and all negotiations for settlement. (d) The limitations in Section 11 do not apply to the indemnities set out in this Section 12.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successor and assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred provided that such successor agrees in writing to be bound by the terms of this Agreement.
- Entire Agreement. This Agreement, including the Order Form, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed electronically or in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile or email shall be deemed effective as delivery of a manually-executed counterpart. Any conflict between the terms set forth on an Order Form and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
- Termination and Suspension. This Agreement takes effect on the Order Effective Date and shall continue until completion for the period of performance set forth in the Order Form. Unless otherwise set forth on the Order Form, upon the initial contract end date this Agreement will automatically renew for successive terms of 12 months, unless either party gives written notice of non-renewal at least 30 days before the renewal date. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Dynamo may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. In addition to the foregoing, Dynamo also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that Dynamo may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. Dynamo will not be obligated to restore access to the Product until Customer has paid all fees owed to Dynamo.
- After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Dynamo shall no longer provide access to the Product to Customer and (ii) Customer shall cease and cause its Users to cease using the Product. Upon termination of this Agreement by Dynamo due to Customer’s uncured breach, in addition to any other remedies Dynamo may have for such breach, Customer shall pay Dynamo for all fees that had accrued prior to the termination date and continue to pay Dynamo for all monthly Product fees that will accrue through the end of the then current term. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 3, 5, 6, 10(d), and 11-20, and all accrued payment obligations, will survive termination or expiration of this Agreement.
- Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to Dynamo Technology, Customer Data, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving Party can demonstrate (a) is in the public domain at the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive three years beyond the expiration or termination of this Agreement. Dynamo shall have the right to use Client’s name and logo on client lists published on Dynamo’s website and in marketing materials. Dynamo may announce the customer relationship in a press release provided that Dynamo obtains Client’s prior approval of the wording of the release.
- Notices. Any notice required or permitted hereunder shall be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (a “force majeure event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Customer will not be excused from the payment of any sums of money owed by Customer to Dynamo that accrued prior to the force majeure event; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within thirty (30) days, the other party may terminate this Agreement.