publishflow™ is a Kontexto Inc. ("Kontexto") service.
TERMS AND CONDITIONS OF USE FOR KONTEXTO SERVICES
Effective Febuary 2, 2009
1. Acceptance of Terms.
Kontexto Inc. (“Kontexto” or “we”) makes available the on-line media measurement and analysis services for which you have subscribed (“Service”), including without limitation, the information and materials provided as part of the Service (“Materials”), subject to the following terms and conditions (the “Terms of Service”). BY CLICKING ON THE “I ACCEPT” CHECKBOX, YOU REPRESENT THAT YOU HAVE READ THE TERMS OF SERVICE AND AGREE TO BE BOUND BY AND COMPLY WITH SUCH TERMS. IF YOU DO NOT AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS OF SERVICE, YOU MAY NOT USE THE SERVICE.
We reserve the right to change these terms and conditions from time to time at our sole discretion by updating this posting, or by any other method of notice we deem appropriate. You agree to regularly review these Terms of Service to be aware of any changes. Unless otherwise stated, changes will be effective immediately upon posting or performance of another form of notice deemed appropriate by us. Any use of the Service by you after notice of changes to these Terms of Service constitutes acceptance by you of such changes.
In addition, if your access to the Service is subject to the terms of a separate written agreement between Kontexto and yourself or the company or organization of which you are an employee, contractor, agent, student or with which you are otherwise engaged or connected, such separate written agreement will prevail over these Terms of Service in the event of any conflict with these Terms of Service.
2. Access and Registration.
In order to use the Service, you must first register and become a registered user of the Service (“Registered User”). In consideration of your use of the Services, you represent that (i) you have either purchased a subscription to use the Service (which may include a “Free Trial” subscription) or have been authorized by the subscriber of the Service for which you are an employee, contractor, agent, student or are otherwise engaged or connected, to access the Service; and (ii) you are of legal capacity to form a binding contract. You also agree that in registering for access to the Service, you will: (a) provide true, accurate, current and complete information when completing any registration form, and (b) maintain and promptly update such information so it remains true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Kontexto has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Kontexto has the right to suspend or terminate your as a Registered User status and refuse any and all current and future use of Services (or any portion thereof).
3. User Account, Password and Security.
As part of the registration process, you are required to designate a user ID and password. You are responsible for keeping your user ID and password confidential. You are also responsible for all activity occurring through use of your account and/or password. You agree to immediately notify Kontexto of any actual or suspected unauthorized use of your user ID and password. Kontexto will not be responsible for any loss to you arising from your failure to comply with the above. You understand that you are responsible for all uses of the Service by you and those using your login information.
4. License.
Kontexto hereby grants you a nonexclusive, nontransferable, limited license to access and use the Service, including any applicable Materials, solely for your own internal business purposes, all subject to the terms and conditions of these Terms of Service. To the extent that the Service to which you have been granted access makes available to you an application programming interface (“API”) , ontexto hereby grants to you a non-exclusive and non-transferrable license to use and reproduce the API for the sole purpose of accessing the Service.
5. Restrictions on Use
The Service is provided to you for internal research and non-commercial use only. Except as expressly permitted hereunder, you shall not (i) use the Service in any manner; (ii) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer the Service, including any API; (iii) rent, lease, lend, sell, sublicense, trade, assign, give or permit access to, disclose, use on behalf of, furnish, redistribute, or republish the Service, or any part thereof, to any third party not expressly permitted hereunder, including but not limited to, any affiliate or any other department of your organization; (iv) attempt to interfere with any other person's use of the Services; (v) attempt to gain unauthorized access to Kontexto's database(s) or other computer systems; (vi) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service; or (vii) use any portion of the Service for any unlawful purpose.
6. Use of Materials
Except as expressly permitted hereunder, you may not duplicate, publish, resell or redistribute Materials into hard copy, machine readable, or any other form without written authorization from Kontexto. You also agree not to download, nor permit any third party to download Materials onto computers, discs, or any other storage media other than into temporary storage for printing purposes. The license granted hereunder permits use to access and use the Materials as follows: (i) include limited excerpts of Materials in reports, presentations or pitch books that are prepared for your own customers as part of the ordinary course of your business; (ii) include limited excerpts of Materials in printed documents or in electronic spreadsheets and electronic print files for use in advising your customers only; and (iii) include certain Materials, as determined by Kontexto, in an electronic intranet, Internet or similar electronic offering for access and limited use by your or your organization’s customers, who shall be made aware of the restrictions upon use of such information and its further distribution. In the event of a suspected breach or violation of any of the foregoing conditions, or in the event the you become aware of a threat to any Kontexto copyright, you shall cooperate with Kontexto to protect such copyrights by assisting in identifying to whom copies of such Material have been supplied.
7. Attribution.
You shall attribute Kontexto’s ownership of the copyright in the Materials by including in all permitted reproduction of excerpts of Materials a notice identifying Kontexto as the source of such Materials and a notice of Kontexto’s copyright in such Materials. An example of such notice is as follows: “Source: Kontexto Inc. Copyright © 2009. Used under license.” You shall protect the copyright and other rights of Kontexto and its suppliers in the Service and Materials during, as well as after, the term of this Agreement.
8. Confidentiality.
You acknowledge that the Service and any other non-publically available information of Kontexto, including without limitation, pricing and usernames and passwords, constitute and contain confidential information and proprietary information and subject matter of Kontexto (“Confidential Information”). You agree not, directly or indirectly, without Kontexto’s prior written consent, use the Confidential Information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to any third party; or permit any third party use of the Confidential Information.
9. Privacy.
All personal information gathered from you in connection with your use of the Service will be governed by Kontexto’s Privacy Policy, which may be accessed by clicking on the following hyperlink: Privacy Policy. You acknowledge that you have read the Privacy Policy, the terms of which are incorporated herein, and agree that the terms of the Privacy Policy are reasonable. You consent to the use of your personal information in accordance with and for the purposes set forth in the Privacy Policy.
10. Proprietary Rights.
The Service is owned and operated by Kontexto and the software, Web site (including its arrangement and look and feel) and Materials are the copyrighted property of Kontexto and its licensors. The trademarks, logos and service marks displayed on the Service are the registered and common law trademarks of Kontexto and various third parties and may not be copied, imitated or used, in whole or in part, without their respective owner’s prior written permission.
11. Suspension and Termination of Service.
Your use will terminate or be suspended upon the termination or suspension of the subscription agreement between Kontexto and the subscriber to the account under which you have been granted access to the Service. In addition, Kontexto may suspend or terminate your status as a Registered User and/or deny your access to, or use of content or the Service, without prior notice and in its sole discretion, if Kontexto reasonably believes that: (i) your conduct has violated any provision of the Terms of Service; or (ii) you have violated or misappropriated any of Kontexto’s or any third party’s rights. Such right of termination shall in addition to, and not be lieu of, any other right to relief or remedy to which Kontexto, its affiliates or its third party providers, partners or distributors may be entitled at law or in equity.
12. Disclaimers.
While Kontexto uses reasonable efforts to provide the Service to you, Kontexto shall not be liable for any inability to provide such Service when caused by any event, condition or circumstances beyond Kontexto's reasonable control. In providing the information and other materials in connection with the Service (“Data”), Kontexto relies upon sources that it believes to be accurate, but you agree that Kontexto cannot and will not verify the accuracy, completeness or timeliness of the Data or any work or product projections based upon such Data.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS AND KONTEXTO, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENORS AND REPRESENTATIVES MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS REGARDING ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED. USE OF THE SERVICE IS AT CUSTOMER’S OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
NEITHER KONTEXTO NOR ANY SUPPLIERS WARRANT THAT THE PROVISION OF THE SERVICE OR DATA HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SAME. THE CLIENT EXPRESSLY AGREES THAT IT USES THE SERVICE AND DATA PROVIDED HEREUNDER AT ITS SOLE RISK. ACCORDINGLY, NEITHER KONTEXTO NOR ITS SUPPLIERS WILL IN ANY WAY BE LIABLE TO YOU OR ANY OTHER ENTITY FOR ANY INACCURACIES, ERRORS, OMISSIONS, DELAYS, DAMAGES, CLAIMS, LIABILITIES OR LOSSES, REGARDLESS OF CAUSE, IN OR ARISING FROM THE USE OF THE SERVICE OR DATA, OR FOR ANY DAMAGE OR DELAYS TO YOUR HARDWARE, SOFTWARE OR DATA USED IN CONNECTION HEREWITH, CAUSED BY THE USE OF THE SERVICE.
13. Limitation of Liability.
(a) EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KONTEXTO BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
(b) DIRECT DAMAGES. KONTEXTO SHALL ONLY BE LIABLE FOR DIRECT DAMAGES. KONTEXTO’S TOTAL AGGREGATE ANNUAL LIABILITY FOR ALL CLAIMS FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE KONTEXTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORSEEABLE SHALL NOT EXCEED US$500.
(c) Basis of Bargain. The disclaimer and limitation of liability set out in Sections 9.1 and 9.2 hereof are fundamental elements of the basis of the agreement between Kontexto and Customer. Kontexto would not be able to provide the Service on an economic basis without such limitations. Such disclaimer and limitation of liability shall inure to the benefit of Kontexto's licensors, successors and assigns.
14. Indemnification.
You agree to defend, indemnify and hold Kontexto, as well as the directors, officers, agents and employees of Kontexto, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonable lawyer’s fees and court costs) arising or resulting from your access or use of the Service, or any access or use under your username or password, unless such claims or damages result from the gross negligence or wilful misconduct of Kontexto in providing the Service to you, or unless your access to or use of the Service as permitted herein and in the Terms of Service have given rise to claims or damages based on the infringement of a copyright or other intellectual property right of a third party.
15. Governing Law.
The Service (excluding linked sites) is controlled by Kontexto from its offices within the Province of British Columbia, Canada. By accessing this Service, you agree that all matters relating to your access to, or use of, the Service shall be governed by the statutes and laws of the Province of British Columbia, without regard to the conflicts of laws principles thereof. Any controversy, dispute or claim (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to the Terms of Service or the Service (collectively the "Claim"), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against Kontexto related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Kontexto. If you have a Claim you should give written notice to arbitrate at the following address: Kontexto Inc., 1420 - 99 Bank Street, Ottawa, Ontario, Canada K1P 1H4. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules in effect on the date of the notice in the Province of British Columbia, Canada. Kontexto makes no representation that materials on this Service is appropriate or available for use in other locations, and accessing the Service from territories where the Service and its content are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws.
If there is a dispute between Registered Users, or between Registered Users and any third party, Kontexto is under no obligation to become involved. In the event that a Registered User has a dispute with one or more Registered User, such Registered User hereby releases Kontexto, its affiliates and their respective officers, employees, agents, successors and assigns from claims, demands and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
16. Entire Agreement.
The Terms of Service, together with Privacy Policy and, if you are the subscriber to the Service, the subscription purchase terms and conditions, constitutes the entire agreement between you and Kontexto regarding your use of the Service, and supercedes any prior agreements between you and Kontexto with respect to the subject matter contained herein. You may also be subject to additional terms and conditions that may apply when you use third party services, content or software made available on, or linked to, the Service. The failure of Kontexto to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision.
17. Severability.
If any portion of the Terms of Service shall be held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable from the Terms of Service and the legality, validity, and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby.
18. Assignment.
Kontexto may assign its rights and obligations under the Terms of Service to any party without your consent. The Terms of Service will inure to the benefit of Kontexto, its successors and assigns.