TruMedia Networks Platform Terms of Use

Last updated August 2019.

These terms and conditions (“Terms of Use”) govern your use of TruMedia Networks, Inc.’s (“TruMedia”, “our”, or “we”) website, our web based application platform or services, such as the TruMedia Analytics Enterprise Platform or similar platforms (collectively, “Services”) and software (including any enhancements, updates and upgrades thereto) that we include as part of the Services, including any applications, Content Files (defined below), scripts, instruction sets, and any related documentation (collectively, “Software”). By using the Services or Software, you agree to these Terms of Use. If you have entered into another agreement with us or any of our authorized licensees concerning specific Services or Software (“Customer License”), then the terms of that Customer License controls where it conflicts with the terms of these Terms of Use. Such Customer License, together with these Terms of Use, shall constitute the “Agreement” governing your use of the Services.

1. How these Terms of Use Work.

1.1 Jurisdiction; Choice of Law. Your relationship is with TruMedia Networks, Inc., a United States company, and the Services and Software are governed by the internal laws of the Commonwealth of Massachusetts, U.S.A. All matters relating to the Services, the Software and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would cause the application of the law of another jurisdiction. Any legal suit, action or proceeding arising out of, or related to, these Terms of Use, the Software or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts, in each case located in Boston, Massachusetts, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. The Services are operated out of the United States of America. We do not represent that content or materials presented on the Services are appropriate (or, in some case, unavailable) for use in other locations. If you access the Services or the Software from a jurisdiction other than the United States, you agree that you do so on your own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable to your use of the Services or the Software.

1.2 Eligibility. You may only use the Services and the Software if you (a) are over 18 years old; (b) are allowed by law to enter into a binding contract; and (c) have entered into a Customer License or are otherwise authorized by TruMedia in writing to receive access to the Services.

1.3 Privacy. The Privacy Policy governs any personal information you provide to us. By using the Services or Software you agree to the terms of the Privacy Policy.

1.4 Availability. Pages describing the Services are accessible worldwide but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. We may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal where you use them. Services are not available in all languages.

1.5 Additional Terms. Some Services or Software are also subject to the additional terms below (the “Additional Terms”). Any content that we provide to you (such as Software, SDK, samples, etc.) are licensed, not sold, to you, and may be subject to Additional Terms. New Additional Terms may be added from time to time.

1.6 Order of Precedence. If there is any conflict between the terms in these Terms of Use and the Additional Terms, then the Additional Terms govern in relation to that Service or Software. If there is any conflict between the terms of this Terms of Use and the applicable Customer License, the terms of the Customer License shall govern in relation to that Service or Software.

1.7 Modification. We may modify, update, or discontinue the Services, and/or the Software (including any of their portions or features) at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make any such change. We will also allow you a reasonable time to download your content.

2. Use of Service.

2.1 License. Subject to your compliance with these Terms of Use and all applicable rules, regulations and legal requirements, you may access and use the Services and the Softwre.

2.2 TruMedia Intellectual Property. We (or our licensors) remain the sole owner of all right, title, and interest in the Services, Software, and all related content (including the Content Files (as defined herein)) populated or provided by TruMedia in connection with your use of the Services or Software. We reserve all rights not granted under these terms. All names, logos, product and service names, designs and slogans are, as between you and TruMedia, trademarks of TruMedia, whether or not appearing in large print or with the trademark symbol. You must not use such marks without our prior written permission. All third party names, logos, product and service names, designs and slogans in the Services are the marks of their respective owners.

2.3 Storage. When the Services provide storage, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account.

2.4 User-Generated Content. We may host user-generated content from our users. If you access our Services, you may come across content that you find offensive or upsetting. Your sole remedy is to simply stop viewing the content. If available, you may also click on the “Report” button to report the content to us.

2.5 Content Files. “Content Files” means TruMedia-provided files such as images, text, displays, audio, graphics, motion pictures, videos, sounds, data, reports, documentation, or other information (including the arrangement and presentation thereof) provided in the Services. Unless (a) the documentation or specific license associated with the Content Files state otherwise; or (b) you have entered into a Customer License with TruMedia in respect of your use of the Services; you may not use, display, modify, reproduce, and distribute any of the Content Files. You must not claim any trademark, copyright or other intellectual property rights in the Content Files or derivative works of the Content Files.

2.6 Access. You are responsible for ensuring that all persons who access the Services through your internet connection are aware of these Terms of Use and comply with them. Not all features available through the Services, including certain streaming audio, video or access to high-quality video, will be available to you unless your computer or mobile device satisfies certain minimum technical requirements. As we make changes to the Services, the minimum technical requirements to access the Services may change. You are responsible for determining whether the computer or mobile device you are using to access the Services meets the minimum technical requirements before you register and/or access the Services. Moreover, if we change the minimum technical requirements after you initially register to access the Services such that your computer or device no longer satisfies the requirements, it shall be your sole responsibility to upgrade or update your computer or device, at your sole cost, as appropriate.

2.7 Security. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. In the event of any unauthorized access or use, we may impose additional security obligations on you. You agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer or on a public wi-fi network so that others are not able to view or record your password or other personal information. If any unauthorized person obtains access to the Services as a result of any act or omission by you, you shall use your best efforts to ascertain the source and manner of such access and shall notify us by calling us at (617) 875-3533. You shall otherwise cooperate and assist with any investigation relating to any such unauthorized access.

2.8 Reliance. The information presented on or through the Services is made available for your internal business purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services or user of the Software, or by anyone who may be informed of any of its contents. These Services and the Software include content provided by third parties, including data and materials provided by licensors, aggregators and/or video content and media services. These materials do not necessarily reflect an endorsement by or the opinion of TruMedia or its affiliates. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

2.9 Other License Types.

(a) NFR Version. We may designate the Software or Services as “trial”, “evaluation”, “not for resale”, or other similar designation (“NFR Version”). You may install and use the NFR Version only during the period and only for the purposes that we have stated when we provide the NFR Version and may only use the NFL Version for the sole purpose and in accordance with the terms specified by TruMedia.

(b) Pre-release Version. We may designate the Software or Services as a pre-release or beta version (“Pre-release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any Customer License we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this section.

3. Your Content.

3.1 Ownership. You retain all rights and ownership of your content. We do not claim any ownership rights to your content.

3.2 Licenses to Your Content in Order to Operate the Services. We require certain licenses from you to your content to operate and enable the Services or the Software. When you upload content to the Services or the Software, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), publicly perform, and translate the content as needed in response to user driven actions (such as when you choose to store privately or share your content with others). This license is only for the purpose of providing, operating or improving the Services or the Software.

3.3 Our Access. We will only access, view, or listen to your content in limited ways. For example, in order to perform the Services, we may need to access, view, or listen to your content to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce these Terms of Use. Our automated systems may analyze your content using techniques such as machine learning. This analysis might occur as the content is sent, received, or when it is stored. From this analysis, we are able to improve the Services or the Software.

3.4 Termination of License. You may revoke this license to your content and terminate our rights at any time by removing your content from the Service and Software. However, some copies of your content may be retained as part of our routine backups.

3.5 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback, without additional compensation to you.

4. Account Information.

You are responsible for all activity that occurs via your account. Please notify TruMedia immediately if you become aware of any unauthorized use of your account. You may not (a) Share your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services or the Software.

5. User Conduct.

5.1 Responsible Use. You must use the Services and the Software responsibly and in compliance with all applicable laws, rules, and legal requirements.

5.2 Misuse. You must not misuse the Services, Software, or content that we provide to you as part of the Services. For example, you must not:

(a) copy, modify, host, stream, sublicense, or resell the Services, Software, or content;
(b) enable or allow others to use the Service, Software, or content using your account information;
(c) use the content or Software included in the Services to construct any kind of database;
(d) access or attempt to access the Services by any means other than the interface we provided or authorized;
(e) circumvent any access or use restrictions put into place to prevent certain uses of the Services or the Software;
(f) share content or engage in behavior that violates anyone’s Intellectual Property Right (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights.);
(g) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
(h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(i) attempt to disable, impair, or destroy the Services, Software, or any associated hardware;
(j) disrupt, interfere with, or inhibit any other user (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);
(k) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
(l) place advertisement of any products or services in the Services or Software except with our prior written approval;
(m) use any data mining or similar data gathering and extraction methods in connection with the Services or Software;
(n) violate applicable laws, rules, legal requirements or any term of any Customer License between you and TruMedia or an authorized licensee of TruMedia with respect to your use of the Services or Software;
(o) use any robot, spider or other automatic device, process or means to access the Services or Software for any purpose, including monitoring or copying any of the material on the Services or Software;
(p) introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
(q) Remove, obscure or alter any legal notices displayed in the Services or Software;
(r) Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services or Software, the server on which the Services or Software is stored, or any server, computer or database connected to the Services or Software; or
(s) Otherwise attempt to interfere with the proper working of the Services or Software.

We may suspend or stop providing you access to the Services and/or Software if you do not comply with these Terms of Use or if we are investigating suspected misconduct. We reserve the right to disclose any information about you or your use of the Services and/or Software in connection with any investigations by us or law enforcement authorities as may be appropriate or necessary to satisfy any law, rule, legal requirement or government request.

6. Your Warranty and Indemnification Obligations.

6.1 Warranty. By uploading your content to the Services and/or Software, you agree that you have: (a) all necessary licenses and permissions to use your content in connection with the Services and/or Software; and (b) the rights necessary to grant the licenses in the Agreement. You further represent and warrant that your content (x) does not and will not infringe or violate the rights of any third party or any applicable law, rule or legal requirement; and (y) does and will comply with these Terms of Use and the terms of the Agreement. You understand and acknowledge that you are responsible for any content you submit or publish to the Services or Software, and you, not TruMedia, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.

6.2 Indemnification. You will indemnify us and our subsidiaries and affiliates and each of their respective officers, directors, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ and professionals’ fees, arising out of or related to your content, your use of the Services or Software, or your violation of these Terms of Use.

7. Disclaimers of Warranties.

7.1 Unless stated in the Additional Terms, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non- infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Services. We further disclaim any warranty that (a) the Services or Software will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services or Software will be effective, accurate, or reliable; (c) the quality of the Services or Software will meet your expectations; or (d) any errors or defects in the Services or Software will be corrected.

7.2 We specifically disclaim any liability for any actions resulting from your use of any Services or Software. You may use and access the Services or Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Software.

7.3 You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services and/or Software will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

8. Limitation of Liability.

8.1 Unless stated in the Additional Terms, we are not liable to you or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with your use of or access to the Services or Software. Nothing in these Terms of Use limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Services or Software or any services or items obtained through the Services or Software or to your downloading of any material posted on it, or on any services linked to it.

8.2 Our total liability in any matter arising out of or related to these Terms of Use is limited to the greater of (x) US $100 and (y) the aggregate amount that you paid TruMedia for access to the Service and Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.

8.3 The limitations and exclusions in this Section 8 apply to the maximum extent permitted by law. 5of7

9. Termination.

9.1 Termination by You. You may stop using the Services and/or the Software at any time. Termination of your use of the Services and/or the Software does not relieve you of any obligation to pay any outstanding fees.

9.2 Termination by Us. If we terminate these terms for reasons other than for cause, then we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. Unless stated in Additional Terms, we may, at any time, terminate your right to use and access the Services or Software if:

(a) you breach any provision of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms);
(b) you fail to make the timely payment of fees for the Software or the Services, if any;
(c) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful);

(d) we elect to discontinue the Services or Software, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or
(e) for any other reason as set forth in the applicable Customer License.

9.3 Survival. Upon expiration or termination of these terms, any perpetual licenses you have granted, your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in these terms will survive. Upon the expiration or termination of the Services, some or all of the Software may cease to operate without prior notice.

10. Investigations.

10.1 Screening. We do not review all content uploaded to the Services or Software, but we may use available technologies or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).

10.2 Disclosure. We may access or disclose information about you, or your use of the Services or Software, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS TRUMEDIA AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

11. Export Control Laws.

The Software, Services, content, and your use of the Software, Services, and content, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Software, Services, and content. You agree to comply with all the laws, restrictions, and regulations.

12. Dispute Resolution.

12.1 Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or TruMedia must resolve any claims relating to these terms, the Services, or the Software (a) pursuant to the terms and conditions of your Customer License; or (b) if no such Customer License exists, then through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.

12.2 Rules. If you reside in the Americas, the American Arbitration Association (“AAA”) will administrate the arbitration in the commonwealth of Massachusetts pursuant to its Commercial Arbitration Rules and Procedures.

12.3 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.

12.4 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services, Software or content in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

12.4 Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13. Modification.

We may modify these terms or any additional terms that apply to a Service or Software to, for example, reflect changes to the law or changes to our Services or Software. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified additional terms in the applicable Service or Software. By continuing to use or access the Services or Software after the revisions come into effect, you agree to be bound by the revised terms.

14. Miscellaneous.

14.1 English Version. The English version of these terms will be the version used when interpreting or construing these terms.

14.2 Notice to TruMedia. You may send the notices to us to at the following address: TruMedia Networks, Inc., 361 Newbury Street, 4th Floor, Boston, Massachusetts 02115, Attention: President and CEO.

14.3 Notice to You. We may notify you by email, postal mail, postings within the Services or Software, or other legally acceptable means.

14.4 Entire Agreement. These Terms of Use, together with any Customer License or other agreement between you and TruMedia, constitute the entire agreement between you and us regarding your use of the Services and Software and supersede any prior agreements between you and us relating to the Services.

14.5 Non-Assignment. You may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be void. We may transfer our rights under these terms to a third party.

14.6 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.

14.7 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
15. DMCA. We respect the Intellectual Property Rights of others and we expect our users to do the same. We will

respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act. TruMedia Networks, Inc., 361 Newbury Street, 4th Floor, Boston, Massachusetts 02115