Last revised on: 22 August 2018
Terms of Service (Trial Agreement)
You acknowledge that this Agreement is subject to and superseded by any separate written and signed contractual agreement between the Licensor and the person or entity that purchased a license to Thresher’s Media Manipulation Monitor.
This Trial Agreement is a binding, contractual agreement (the “Agreement”) between You and Thresher LLC (“Licensor”). This Agreement applies solely to Your use of the Thresher service with which the Agreement is provided (the “Trial Service”).
By Registering for the Trial Service or by using the Trial Service, You are indicating Your acceptance and agreeing to all the terms and conditions of this Agreement. By accessing or using the Trial Service, you are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). If You do not accept and agree to the following terms and conditions, You must not access or use the Trial Service.
Subject to the terms and conditions of this Agreement, Thresher (a) agrees to make the Services available to You during the Trial Period, and (b) grants You a non-exclusive, non-transferable, non-sublicensable subscription to access and use the SaaS Platform solely for your internal business purposes during the Trial Period. You may not share your sign-on credentials or otherwise provide anyone else with access to the SaaS Platform, and Thresher may suspend Your access if Thresher reasonably believes You have violated this restriction. Thresher reserves the right to modify the SaaS Platform (in whole or in part) at any time. The term “SaaS Platform” means the tools to analyze certain digital content made available through certain third-party social networking services. The term “Services” means access to and use of the SaaS Platform.
2. RESTRICTIONS AND CONDITIONS.
2.1 Restrictions. You may not use the Services for commercial purposes. In addition, You agree that You will not publish any Thresher Content without Thresher’s prior written permission.
2.2 DEPENDENCIES. THRESHER DOES NOT CONTROL ANY SOCIAL NETWORKING SERVICE (“SNS”) PROVIDERS AND CAN NOT GUARANTEE THAT THEY WILL ALWAYS PERMIT THRESHER TO ACCESS THEIR SERVICES AND PROVIDE THE SERVICES. IF A SNS BLOCKS THRESHER OR A USER, THEN CERTAIN FEATURES OF THE SERVICES MAY NOT BE AVAILABLE AND THRESHER SHALL NOT BE RESPONSIBLE FOR SUCH UNAVAILABILITY.
2.3 Ownership of Services. Subject to the rights granted in this Agreement, Thresher retains all right, title and interest in and to the Thresher Services, the Insights, the Thresher Content and the SaaS Platform, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement or any licenses to the software used to provide the Services. “Thresher Content” means content that is included in the Services that is available from a public source, from a third party under license, or created by Thresher through the analysis of that data (the “Insights”). Customer further acknowledges that Thresher retains the right to use the Thresher Content for any purpose in Thresher’s sole discretion.
2.4 Feedback. If You provide Thresher with any feedback or suggestions regarding the Trial Service (“Feedback”), you hereby assign to Thresher all rights in such Feedback and agree that Thresher shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Thresher will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Thresher any information or ideas that you consider to be confidential or proprietary.
3.1 Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. For purposes of clarity, all SNS Content, Your Content and Customer Materials not excluded pursuant to Section 3F.2 below shall constitute Confidential Information as set forth in this Section. Thresher acknowledges that money damages may not be sufficient compensation for a breach of Confidentiality by Thresher and agrees that Customer may seek court orders to stop its Confidential Information from becoming public in breach of this Agreement by Thresher and Customer shall have the right to seek and obtain any and all remedies available, including but not limited to, injunctive relief.
3.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (a) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (b) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement.
4. LIMITED WARRANTY & DISCLAIMER.
4.1 Thresher represents and warrants that it will provide the Thresher Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards and as set forth in this Agreement.
4.2 Disclaimers. THRESHER DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND THRESHER DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND/OR DATA ACCURACY.
5. LIMITATION OF LIABILITY.
EXCEPT FOR ANY BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF THRESHER TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT OR TORT, WILL NOT EXCEED $1,000.
6. TERM AND TERMINATION. This Agreement shall begin as of the date You accept this Agreement, or as of the date You access or use the Trial Service, whichever first occurs (the “Effective Date”) and remain in effect for a period of ninety (90) days, unless terminated earlier as allowed for in this Agreement (the “Term”). At any time during the term of this Agreement, Licensor shall have the right to terminate this Agreement immediately and without further obligation or liability with or without cause by giving You one (1) day after written notice via email or otherwise. Upon expiration or termination of this Agreement, all rights granted to You shall cease, and You shall promptly (i) return the Trial Service to Licensor; and (ii) purge, destroy or delete all copies of any software or documentary components of the Trial Service, or any portion thereof, remaining in Your control or possession.
7. GENERAL PROVISIONS. This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to, or application of, rules or principles regarding conflicts of law. The state and federal courts located in the Commonwealth of Virginia shall have sole and exclusive jurisdiction over any disputes arising under this Agreement, and You agree to submit to the personal jurisdiction of such courts. You acknowledge that Licensor will have the right to seek an injunction if necessary to prevent a breach of Your obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that Licensor prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, Licensor will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The failure of Licensor to require Your performance of any provision in this Agreement shall not affect Licensor’s full right to require such performance at any time thereafter; nor shall the waiver by Licensor of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. You may not assign this Agreement without Licensor’s prior written consent; otherwise any attempted or purported assignment by You shall be null and void. Excepting any contractual agreement between the person or entity that purchased the applicable license to the Trial Service and Licensor, this Agreement is the complete and exclusive statement of the agreement between Licensor and You, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
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