MaYH Inc. ONLINE SERVICE SUBSCRIPTION AGREEMENT
Last Updated: March 31, 2017
Provider will provide Customer with access to the Services (defined below)and the related website located at Zdaly.com or such other Internet addresses as may be specified by the Provider (collectively, the “Site”), specifically and solely for the purposes of requesting and receiving Data (defined below), and using the Services under the related Subscription Plan (defined below).
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING AGREE OR BY ACCESSING OR USING THE SITE, THE SERVICES, OR THE DATA, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, THE SERVICES, OR THE DATA. If you accept or agree to this Agreement on behalf of, or in your capacity as an employee, agent, or representative of a company or other legal entity, you represent and warrant that you have the authority to bind the company or other legal entity to this Agreement and, in such event; “Customer”, “you” and “your” will refer and apply to that company or other legal entity.
A. “Services” consist of a set of software programs, interfaces, and webpages running on computers hosted at Provider sites or at third-party hosting facilities accessible via the Internet as described in this Agreement and elsewhere on the Site.
B. “Data” means the information in any form or format presented delivered to Customer via the Services that is (i) licensed or owned by Provider or (ii) obtained by Provider from other sources, which maybe private or public or (iii) otherwise described in this Agreement and on the Site.
C. “Data Owner” means an individual or legal entity that holds ownership or license rights to a portion of Data and is the original licensing source of such portion of the Data.
D. “Subscription Plan” means any and all of the subscription plans selected by the Customer in connection with the use of the Services and Data. Provider posts the available subscription plans and pricing and the specific use of the Services and Data provided by each subscription plan on the Site, and such plans may be updated by the Provider from time to time in its sole discretion.
Provider reserves the right to modify, discontinue or terminate the Site, the Services, the Data and any portion thereof or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site or otherwise provide you with notice of the modification. Provider will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Site, the Services and the Data after Provider has posted a modification on the Site or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Site, the Services, and the Data.
ACCOUNT CREATION AND REGISTRATION
In order to access Data from the Site and the Services, you must register and create an account (“Account”). During the registration process, you will be required to provide certain information and establish a password. You agree to provide accurate, current and complete information during the registration process and to continuously update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password and Account information. You agree not to disclose your password to any unauthorized third party and to take sole responsibility for any activities or actions taken under your Account, whether or not you have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of your Account.
LICENSE AND RIGHT OF ACCESS GRANT
Right of Access to the Services and the Site. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Services and the Site solely for its business or personal purposes. This Agreement governs Customer’s access to and use of the Services and the Site. Customer acknowledges and agrees that but for this Agreement, Customer would have no rights or access to the Services and the Site.
Rights in Data. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access the Data available via the Services solely for its business or personal purposes. In addition, Customer acknowledges and agrees that the Data may be subject to restrictions of use and require additional license agreements with the Data Owner. To the extent the Data includes copyright statements or attributions linking the results to a Data Owner, Customer may not remove or obscure those attributions or copyright statements.
Proprietary Rights of Provider and Data Owner. Subject to the limited rights expressly granted hereunder, Customer acknowledges that the Data, the Services, the Site, and/or any developments to the Data, the Services, and the Site that are provided to Customer hereunder are proprietary in nature and owned exclusively by Provider and/or the applicable Data Owners. The Data, the Services and the Site, as well as and developments are to be used exclusively as described and permitted herein.
Restrictions on the Services.
- Customer may use the Services solely with any software application owned or licensed by Customer.
- Customer may not use, adapt, modify, redistribute, sublicense, sell or otherwise make available any portion of the Services for use by software applications not owned or licensed by Customer.
- Customer will not attempt to access, tamper with, or use non-public areas of the Site, or the computer systems, or the technical delivery systems of the Provider or the applicable Data Owners.
- Customer will not attempt to probe, scan, violate, or test the vulnerability of any of Provider’s systems or networks or breach any of Provider’s security or authentication measures.
- Customer will not use spidering, data-mining, scraping, robots, scripts, or organized groups of individuals to repeatedly access or otherwise abuse the Services.
- Customer will not use frames or other browser technologies to embed or surround the Site or to otherwise use Services indirectly through another website that has created a large number of deep links to the Services, or that automatically constructs links to the Services without express written permission from Provider.
- Customer will not use the Services in a manner that is likely or intended to create or serve as a replacement or alternative to using the Services.
Restrictions on the Data and Third Party Data
- Customer may use the Data solely with any software application owned or licensed by Customer.
- Customer will not use, redistribute, sublicense, sell or otherwise make available any portion of the Data for use in software applications not owned or licensed by Customer.
- Customer may not make the Data available to non-employee users, including but not limited to, vendors, contractors, partners and the general public (e.g., public websites, partner and vendor extranets, EDI applications, etc.) unless licensed or permitted to do so by the applicable Data Owner.
TELECOMMUNICATIONS AND INTERNET SERVICES
Customer acknowledges that the use of the Services by Customer is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
TERM AND TERMINATION
Term. This Agreement will commence when you click “I agree”. This Agreement shall continue through the period specified by the Subscription Plan you select and thereafter will automatically renew as specified by the applicable Subscription Plan, unless either Party provides to the other notice of termination in accordance with the terms of this Agreement.
Right to Terminate. Customer may terminate this Agreement for any reason by delivering an electronic notice of termination as set forth in this Agreement at least five (5) days prior to the end of the then current billing period as set forth in the applicable Subscription Plan. Notwithstanding the foregoing, Provider may terminate this Agreement immediately without prior notice at any time in the event that Provider reasonably believes that Customer has breached any material term of this Agreement.
Inability to Provide Data. If Provider ever loses the license, right or ability to provide any portion of the Data or such license or right is ever interrupted or otherwise impaired, then Provider agrees to notify Customer of such fact if permitted to do so and Customer must immediately terminate use of any affected portion of the Services.
Subscription Fees. Customer will pay to Provider any stated fees in connection with the Subscription Plan selected by Customer to use the Services and the Data (“Subscription Fees”). Thereafter the applicable Subscription Fees for Customer’s use of the Services and the Data shall be as set forth in the Subscription Plan selected by you. All Subscription Fees are due at the beginning of each subscription term as specified in the Subscription Plan and Provider will charge the method of payment provided by Customer via the Site in the amount of the Subscription Fees in connection with the Subscription Plan selected. Subscription Fees shall not be refunded or prorated in the event of termination by either party. Subscription Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider’s net income.
Service Level. Provider will use its reasonable commercial efforts to ensure that the Services are available and operational except for reasonable service interruptions due to Excusable Delays (defined below) or maintenance. Provider further agrees that it will use its reasonable commercial efforts to prevent and/or respond to and remedy any interruption to the operation of the Services caused by third parties from unlicensed use, viruses, malicious code, denial of service attacks, or other external tampering with the Services. HOWEVER, UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO OTHER WARRANTY REGARDING THE OPERATION OR AVAILABILITY OF THE WEB SERVICES.
Support Services. Provider will provide support to Customer for the duration of this Agreement. Support services may, at Provider’s sole discretion, include the following: (i) assistance with the proper use of the Services, and (ii) corrective action to remedy any demonstrated errors in the Services necessary to enable the Services to operate.
Customer Responsibilities. Customer will promptly report any errors in the operation of the Services to Provider and will not take any actions that would increase the severity of the error. Customer will use the Services solely as described herein. In the event that Customer violates any of the obligations of this Agreement, Provider will have no responsibility to provide any support.
Enhancements and Modifications. Provider may provide to Customer enhancements or modifications (“Updates”) to the Services as they become available. Customer acknowledges that additional Subscription Fees may be charged for the use of Updates, and that Provider has sole discretion in identifying which Updates require the payment of additional Subscription Fees. Provider acknowledges that Customer has sole discretion in deciding to use Updates and is only responsible for additional Subscription Fees for those Updates that Customer decides to use. Should Customer decide to use Updates that require additional Subscription Fees, then new Subscription Fees for Customer’s use of the Services shall be as described and/or as selected by Customer via the Site in connection with purchase to use the Services. Should any Update remove or alter any function of the Services or any portion the Data that was available prior to the Update, such that it degrades the functioning of Customer’s computer systems, Customer may immediately terminate this Agreement as its sole remedy for the removal or alteration of such functionality.
WARRANTIES, INDEMNITY, AND LIMITATION OF LIABILITY
Indemnification by Provider. Provider agrees to defend (or settle), indemnify and hold Customer, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorney fees) in connection with any third party claim that the Services infringe or misappropriate any Intellectual Property Rights (defined below) of any third party, only to the extent the liabilities, damages, or expenses result from use of the Services that is within the scope of this Agreement, provided that Customer does not make any admission of Provider guilt without Provider’s prior written approval, and provided that Customer gives Provider (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action. As used in this Section, “Intellectual Property Rights” specifically includes, without limitation, any patent, copyright, trade mark, trade name, trade dress, trade secret, service mark, service name, title, slogan, proprietary process, or any other intellectual property right.
Indemnification by Customer. Customer agrees to defend (or settle), indemnify and hold Provider, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorney fees) in connection with any breach of violation of this Agreement by Customer or any third party claim that any use of the Data or any use of the Services to the extent such use of the Services is in violation of this Agreement infringes or misappropriates any Intellectual Property Rights of any third party, provided that Provider does not make any admission of Customer guilt without Customer’s prior written approval and provided that Provider gives Customer (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action.
Warranty Disclaimers. OTHER THAN SPECIFICALLY SET FORTH HEREIN, (i) THE SERVICES, THE SITE, AND THE DATA ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION PROVIDED, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR PERFORMANCE, (ii) PROVIDER MAKES NO WARRANTY THAT THE SERVICES, THE SITE, OR THE DATA WILL MEET CUSTOMER’S SPECIFIC OBJECTIVES OR NEEDS; (iii) PROVIDER MAKES NO WARRANTY THAT THE SERVICES, THE SITE, OR THE DATA WILL BE FREE FROM ERRORS OR BUGS; and (iv) PROVIDER MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE SERVICES, THE SITE, AND THE DATA. CUSTOMER ACKNOWLEDGES THAT (i) ANY DATA DOWNLOADED THROUGH THE USE OF THE SERVICES AND THE SITE IS DONE AT ITS OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH DATA and (ii) THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR THE GRANT OF ACCESS TO THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
Accuracy of Data and Third Party Data. PROVIDER MAKES NO WARRANTY REGARDING THE DATA OR ANY OTHER INFORMATION PURCHASED OR OBTAINED THROUGH PROVIDER’S SITE AND/OR THE SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY DATA OR OTHER INFORMATION OBTAINED THROUGH PROVIDER’S WEBSITE AND/OR THE SERVICES.
Limitation of Liability. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED (IN THE AGGREGATE) THE MOST RECENT THREE (3) MONTHS SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS OR STRICT LIABILITY OR ANY OTHER FORM OF ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE HOWEVER CLAIMED OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, OR LOST DATA. ALL OF THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILTY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Excusable Delays. Any delay in performance of any provision of this Agreement, except for Customer’s obligation to pay the Subscription Fees, caused by conditions beyond the reasonable control of either Party will not constitute a breach of this Agreement, provided that the delaying Party has taken reasonable measures to notify the affected Party of the delay in writing and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. The delayed Party’s time for performance will be deemed extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a Party’s reasonable control include, but are not limited to, natural disasters, acts of government, acts of terrorism, power failures, major network failures, fires, riots, and acts of war (collectively, “Excusable Delays”).
Compliance with Laws and Policies. The Parties hereby agree to abide by and comply with all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property). Provider does not represent that Data or the Services are appropriate or available for use in any particular geographical location. Customer warrants and represents that Customer shall at all times comply with all applicable laws including, but not limited to, applicable U.S. export controls. By using the Services, Customer expressly represents and warrants that Customer is permitted to do so under all applicable laws, including but not limited to those relating to U.S trade sanctions.
Controlling Law, Arbitration and Waiver of Class Action. The Parties agree the laws of the State of New York, excluding its conflict of laws provisions, will govern this Agreement and all matters arising out of or related to this Agreement.
(a) Any controversy or claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved by means of binding arbitration before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall be a practicing attorney or retired judge with at least fifteen years total working experience as such. The arbitration shall be held in New York, United States or any other place agreed upon at the time by the parties. The laws of the State of New York shall be applied in any arbitration proceedings, without regard to principles of conflict of law. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation.
(b) NO ARBITRATOR OR COURT MAY ORDER, PERMIT, OR CERTIFY A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL LITIGATION OR CONSOLIDATED ARBITRATION IN CONNECTION WITH THIS AGREEMENT. NO ARBITRATOR OR COURT MAY ORDER OR PERMIT A JOINDER OF PARTIES IN CONNECTION WITH THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU AGREE TO WAIVE THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL LITIGATION OR CONSOLIDATED ARBITRATION RELATED TO THIS AGREEMENT. THE ARBITRATOR IS NOT AUTHORIZED TO AWARD PUNITIVE OR OTHER DAMAGES NOT MEASURED BY THE PREVAILING PARTY’S ACTUAL DAMAGES.
(c) Each part shall bear its own costs, fees, and expenses of arbitration.
(d) The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management and to family members of a party who is an individual.
(e) The arbitrator shall require exchange by the parties of (i) the name and, if known, address and telephone number of each person likely to have knowledge of relevant information, identifying the subjects of the information, and (ii) non-privileged documents, including those in electronic form, that are relevant to the issues raised by any claim, defense or counterclaim or on which the producing party may rely in support of or in opposition to any claim, defense or counterclaim. The arbitrator shall limit such production based on considerations of unreasonable expense, duplication and undue burden. These exchanges shall occur no later than a specified date within 60 days following the appointment of the arbitrator. At the request of a party, the arbitrator may at his or her discretion order the deposition of witnesses. Depositions shall be limited to a maximum of three depositions per party, each of a maximum of four hours duration, unless the arbitrator otherwise determines. The arbitrator may allow such other discovery as he or she determines is reasonably necessary for a fair determination of the dispute. Any dispute or objections regarding discovery or the relevance of evidence shall be determined by the arbitrator. All discovery shall be completed within 120 days following the appointment of the arbitrator, unless the arbitrator otherwise determines.
Entire Agreement and Severability. This Agreement, including the Subscription Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and the Provider respecting the Site, the Services, and the Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. Provider reserves the right to modify this Agreement, at any time and without prior notice as set forth in this Agreement.
Force Majeure. The Provider shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
Waiver. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
Assignment. Customer may not assign this Agreement without prior written consent of Provider. Provider may assign this Agreement to any third party upon notice to Customer.
Severability. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
Relationship between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior express written consent.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the Customer and Provider and is not intended to benefit any third party. Only the Parties to this Agreement and its permitted assignees may enforce it.
Notice. The parties may give notice to each other via email or certified mail. Notices sent to Provider should be directed to email@example.com or the mailing address specified on the Site. Notices sent by Provider shall be deemed received by Customer when sent to Customer at the email address provided during Account registration.
Survival. The provisions of the “Definitions” Section and such other Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned sections will survive any termination or expiration of this Agreement.