SHAREIQ TERMS AND CONDITIONS EFFECTIVE: JULY 18, 2017 These Terms and Conditions (“Terms and Conditions”) govern any Proposal Form entered into between ShareIQ US, Inc. (“ShareIQ”) and the subscriber identified in the Proposal Form (“Subscriber”). The Proposal Form and the Terms and Conditions, are collectively referred to as the “Agreement”. Capitalized terms have the meaning provided in Section 10. Capitalized terms not defined in these Terms and Conditions have the meaning provided in the Proposal Form.
WHEREAS, ShareIQ provides Services for acquiring and measuring image performance data for brands to gain insight into how online product images lead to discovery, influence and purchase; and
WHEREAS, Subscriber desires to access and use the Service(s) identified in the applicable Proposal Form;
NOW, THEREFORE, for the good and valuable consideration set forth herein, the parties agree as follows:
1. SHAREIQ SERVICES.
a. Access Grant. Subject to the terms and conditions of this Agreement, ShareIQ grants to Subscriber a non-exclusive, non-transferable, non-sublicenseable, revocable license, during the Term of this Agreement and solely for Subscriber’s internal business purposes to: (i) access and use the Services, and to allow Authorized Users to access the Services, as set forth in the applicable Proposal Form and in accordance with the Documentation; and (ii) reproduce and use, and to allow Authorized Users to reproduce and use, the Raw Data and Reports as expressly permitted hereunder.
b. Access Protocols. Subscriber will safeguard, and ensure that all Authorized Users safeguard, the Access Protocols. Subscriber will be responsible for all acts and omissions of Authorized Users. Subscriber will notify ShareIQ immediately if it learns of any unauthorized use of any Access Protocols or any other known or suspected breach of security.
c. Subscriber Customers. Subscriber may permit any Subscriber Customer to access, reproduce and use the Reports and/or Raw Data, as set forth in the Proposal Form, solely for its internal business purposes, and not for further resale or distribution. Before allowing any Subscriber Customer to access any Reports and/or Raw Data, as applicable, Subscriber will enter into a binding written agreement with such Subscriber Customer that protects ShareIQ’s rights and interests to at least the same degree as this Agreement, including Sections 1(e) and 6. Upon the expiration or termination of this Agreement, Subscriber will, and will cause each Subscriber Customer to, return or destroy (permanently delete) all Raw Data (excluding Reports) in its, and each of its Subscriber Customer’s, control or possession.
d. Audience Segment Services. i. Audience Segment Services Fees. Subscriber may access and use the Audience Segment Services at any time during the Term by clicking the “Distribute“ within the “Audience“ tab of the ShareIQ Subscriber platform, at which time the fees for the Audience Segment Services set forth in the applicable Proposal Form will apply. ii. Subscriber Obligations. Subscriber will (A) promptly identify and provide ShareIQ with contact information for Subscriber’s DMP and (B) use the Audience Segment Services solely for Subscriber’s internal business purposes and in accordance with applicable Privacy Laws. Subscriber agrees that it will not, and will not permit any other party to: (1) use the audience segments created in connection with the Audience Segment Services (“Audience Segments”) for or on behalf of any third party; or (2) provide any third party, other than Subscriber’s DMP, access to the Audience Segments or information, materials or Documentation related to the Audience Segment Services. Upon termination or expiration of this Agreement for any reason, Subscriber will promptly delete the Audience Segments and all data related to or derived from the Audience Segment Services, including that held by Subscriber’s DMP. “Privacy Laws“ means all laws, self-regulatory principles and codes of conduct governing the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security, disclosure or transfer of personal information, including those issued by the Network Advertising Initiative and the Digital Advertising Alliance.
e. Limitations. The ShareIQ Property, including, but not limited to, all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of ShareIQ and its suppliers. Subscriber agrees that it will not, and will not permit any Subscriber Customer or other party to: (i) permit any party to access the Raw Data or Documentation or use the Services, other than the Subscriber Customers authorized under this Agreement; (ii) modify, adapt, alter or translate the ShareIQ Property, except as expressly allowed herein; (iii) sublicense, lease, rent, loan, distribute or otherwise transfer the Raw Data or Documentation to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services or Raw Data; (v) use or copy the Raw Data or Documentation except as expressly allowed under Section 1; (vi) disclose or transmit any data contained in the Raw Data to any individual other than a Subscriber Customer, except as expressly allowed herein; or (vii) unless otherwise agreed, incorporate any part of the Raw Data into any product or service of Subscriber or any Subscriber Customer, or any other product or service. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the ShareIQ Property or any part thereof.
Subscriber will pay the Fees to ShareIQ in accordance with the payment schedule set forth in these Terms and Conditions or the applicable Proposal Form(s). Unless otherwise specified in any Proposal Form, all invoices issued by ShareIQ will be in arrears and will be due and payable thirty (30) days after receipt. All Fees will be paid in the currency specified in the applicable Proposal Form and will exclude all applicable sales, use and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
3. OWNERSHIP; LICENSES.
a. Ownership. As between ShareIQ and Subscriber, the ShareIQ Property, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of ShareIQ and its suppliers. All rights in and to the ShareIQ Property not expressly granted to Subscriber in this Agreement are reserved by ShareIQ and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the ShareIQ Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Services.
b. Continuous Development. Subscriber acknowledges that ShareIQ may continually develop, deliver and provide to Subscriber ongoing innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, ShareIQ reserves the right to modify the Services from time to time. Some modifications will be provided to Subscriber at no additional charge. In the event ShareIQ adds additional functionality to a particular Service, ShareIQ may condition the implementation of such modifications on Subscriber’s payment of additional fees provided Subscriber may continue to use the version of the Service that ShareIQ makes generally available (without such features) without paying additional fees.
c. License by Subscriber. Subscriber grants ShareIQ a non-exclusive, worldwide, royalty-free and fully paid license to use the Subscriber Content as necessary for purposes of providing the Services and in connection with ShareIQ‘s Affiliate Enablement Services and Audience Segment Services. The Subscriber Content hosted by ShareIQ as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Subscriber. All rights in and to the Subscriber Content not expressly granted to ShareIQ in this Agreement are reserved by Subscriber.
d. Feedback. ShareIQ, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Subscriber to ShareIQ in connection with its access to and use of the Services (all reports, comments and suggestions provided by Subscriber hereunder constitute, collectively, the “Feedback”). Subscriber hereby grants ShareIQ a worldwide, nonexclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into ShareIQ products and services.
4. WARRANTIES; DISCLAIMERS.
a. General Representations. Each party hereby represents and warrants: (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
b. Limited Warranty. ShareIQ warrants to Subscriber that the Services will operate free from Errors during the Term of the Agreement. Provided that Subscriber notifies ShareIQ in writing of any breach of the foregoing warranty during the Term hereof, ShareIQ will, as its sole and exclusive remedy, provide the support services in accordance with ShareIQ’s standard support and maintenance policies. This warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary from jurisdiction to jurisdiction.
c. By Subscriber. Subscriber represents and warrants to ShareIQ that Subscriber has all rights and licenses in and to the Subscriber Content necessary to authorize ShareIQ to perform the Services as contemplated by this Agreement. Without limiting the foregoing, Subscriber represents and warrants to ShareIQ that any Subscriber Content provided to ShareIQ pursuant to this Agreement will not: (i) infringe any copyright, trademark, or patent or other intellectual property or proprietary right of a third party; (ii) violate any right of privacy or publicity or contain any defamation of a third party; (iii) misappropriate any trade secret; (iv) be deceptive, defamatory, obscene, pornographic or unlawful; (v) contain any viruses, worms or other malicious computer programming codes intended to damage ShareIQ’s system or data; or (vi) otherwise violate any applicable law and/or the rights of a third party. ShareIQ is not obligated to back up any Subscriber Content; Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense. Subscriber agrees that any use of the Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the Services.
d. Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RAW DATA, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS,” AND SHAREIQ MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE RAW DATA, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY SHAREIQ. SHAREIQ DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
5. LIMITATION OF LIABILITY.
A. TYPES OF DAMAGES. EXCLUDING CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION, OR BREACHES OF CONFIDENTIALITY, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ITS SUPPLIERS FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH SHAREIQ’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SHAREIQ HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
B. AMOUNT OF DAMAGES. EXCLUDING BREACHES OF CONFIDENTIALITY, THE MAXIMUM LIABILITY OF SHAREIQ ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO SHAREIQ DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL SHAREIQ’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
c. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 5 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
a. Confidential Information. During the Term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information, which the Receiving Party knew or should have reasonably known under the circumstances, was the confidential or proprietary information of the Disclosing Party (collectively, “Confidential Information”). The Raw Data, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of ShareIQ.
b. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Subscriber Customers (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to ShareIQ). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
c. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (i) becomes generally available to the public through no fault of the Receiving Party; (ii) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (iii) was already known to the Receiving Party at the time of disclosure; or (iv) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
d. System Use Information. ShareIQ may use and disclose, in its sole discretion, any aggregated and de-identified information regarding Subscriber’s use of the Services. Any disclosure of such information will not identify Subscriber or any specific Subscriber Customer of Subscriber.
a. ShareIQ Indemnity. ShareIQ will (i) defend, or at its option settle, any suit filed by a third party against Subscriber (a “Suit”) to the extent such Suit claims that Subscriber’s use of the Services or Documentation as permitted in this Agreement constitutes Subscriber’s infringement or misappropriation by Subscriber of a third party’s Intellectual Property Rights; and (ii) pay (A) any final judgment or award directly resulting from such Suit or (B) those damages agreed to by ShareIQ in a monetary settlement of such Suit. If any portion of the Services or Documentation becomes, or in ShareIQ’s opinion is likely to become, the subject of a claim of infringement, ShareIQ may, at ShareIQ’s sole option: (1) procure for Subscriber the right to continue using the Services or Documentation; (2) replace the Services or Documentation with non-infringing software or services which do not materially impair the functionality of the Services or Documentation; (3) modify the Services or Documentation so that it becomes non-infringing; or (4) terminate this Agreement and refund any Fees actually paid by Subscriber to ShareIQ for the remainder of the Term then in effect, and upon such termination, Subscriber will immediately cease all use of the Raw Data, Documentation, and Services.
b. Exclusions. Notwithstanding the foregoing, ShareIQ will have no obligation under Section 7(a) or otherwise with respect to any Suit or other claim or damages that would not have arisen but for (i) the Subscriber Content; (ii) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (iii) any use of the Services in combination with other products, equipment, software or data not supplied by ShareIQ; or (iv) any modification of the Services or Documentation by any person other than ShareIQ or its authorized agents (any of the foregoing circumstances under clauses (i), (ii), (iii) or (iv) will be collectively referred to as a “Subscriber Indemnity Responsibility”).
c. Subscriber Indemnity. Subscriber will indemnify, defend and hold harmless ShareIQ, its directors, officers, employees and representatives from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, arising out of any third party claim alleging a Subscriber breach of any Subscriber warranty or arising out of any Subscriber Indemnity Responsibility.
d. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (ii) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
e. PROVISIONS OF THIS SECTION 7 STATE SHAREIQ’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8. TERM AND TERMINATION.
a. Term. The term of this Agreement will commence on the Effective Date set forth in the initial Proposal Form and will continue for as long as any Proposal Form is in effect, unless terminated in accordance with this Section 8 or as otherwise expressly provided in this Agreement (the “Term”).
b. Termination. Either party may terminate this Agreement or any Proposal Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice. At any time during the Term, ShareIQ may, immediately upon notice to Subscriber, terminate this Agreement or any Proposal Form, and/or suspend or terminate access to any Service, at ShareIQ’s sole discretion, including for the following reasons: (i) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by ShareIQ within fifteen (ii) days after it was due; or (iii) ShareIQ believes that any Service, as delivered to Subscriber, breaches or may breach any contractual obligation of ShareIQ or applicable law or infringes or may infringe any third party intellectual property or proprietary right. ShareIQ may cancel, suspend or block Subscriber’s use of the ShareIQ Property without notice if there has been a breach of this Agreement by Subscriber.
c. Effect of Termination. Upon termination or expiration of this Agreement for any reason, (i) any amounts owed to ShareIQ before such termination or expiration will be immediately due and payable; (ii) all licensed and access rights granted will immediately cease to exist; and (iii) each party will promptly destroy the Confidential Information of the other party that it has in its possession. In addition, any data that Subscriber may have stored on the Services, including Subscriber Content, may be unavailable following termination or expiration of this Agreement, unless ShareIQ is required to retain it by law. ShareIQ is not responsible or liable for any records or information that is made unavailable to Subscriber as a result of such termination or expiration. SUBSCRIBER AGREES THAT SHAREIQ WILL NOT BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY TERMINATION OF SUBSCRIBER’S ACCESS TO THE SHAREIQ PROPERTY. Subscriber’s payment obligations and Sections 1(d)(ii), 1(e), 3(a), 3(d), 4, 5, 6, 7, 8(c), 9 and 10 will survive the expiration or termination of this Agreement.
a. Relationship of the Parties. Subscriber’s relationship to ShareIQ is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of ShareIQ.
b. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in New York, New York and both parties hereby submit to the jurisdiction and venue of such courts. Subscriber will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Raw Data, Documentation, or Services hereunder.
c. Export. Subscriber agrees not to: (i) export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ShareIQ, or any products utilizing such data, in violation of the United States export laws or regulations; or (ii) transfer any data acquired from ShareIQ (including anonymous, aggregate, or derived data) to any ad network, data broker, influencer network, or other advertising or monetization-related service.
d. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Proposal Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
e. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
f. Remedies. Subscriber acknowledges that any actual or threatened breach of Sections 1 or 6 will constitute immediate, irreparable harm to ShareIQ for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
g. Assignment. Subscriber will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of ShareIQ, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
h. Severability; Waivers. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
i. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
j. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. These Terms and Conditions are subject to change. ShareIQ will provide Subscriber with reasonable prior notice of any material changes to these Terms and Conditions, with the understanding that the revised Terms and Conditions will be effective as of the date specified in the notice. Subscribers should regularly check these Terms and Conditions to ensure Subscriber understands its rights and obligations under these Terms and Conditions and that it is in compliance with these Terms and Conditions.
Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
a. “Access Protocols” means login information, passwords, security protocols and policies through which Authorized Users access any Service.
b. “Affiliate Enablement Services” means ShareIQ’s Service through which ShareIQ, alone or in conjunction with others, uses images and metada including, without limitation, Subscriber Content to identify, link to, promote or market the product(s) or service(s) identified in and by such images and meta data.
c. “Audience Segment Services” means ShareIQ’s Service through which Subscriber can create audience segments of individuals who have liked, posted, shared, viewed or otherwise engaged with Subscriber Content, which audience segments can be used to deliver targeted advertising to such individuals.
d. “Authorized User” means each of Subscriber‘s employees, agents and independent contractors who are provided Access Protocols by Subscriber or ShareIQ.
e. “Documentation” means the technical materials provided by ShareIQ to Subscriber in hard copy or electronic form describing the use and operation of the Services.
f. “Error” means a reproducible failure of the Services to substantially conform to the Documentation.
g. “Fees” means the fees and charges set forth in the applicable Proposal Form.
h. “Image Performance Services” means ShareIQ’s Services that are designed to enable Subscribers to: (i) collect, measure and analyze data related to the use and distribution of Subscriber Content across the internet and (ii) optimize the marketing performance of the Subscriber Content and increase sales.
i. “Intellectual Property Rights” means any and all now known or hereafter existing (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (vi) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
j. “Reports” means reports relating to or derived from use of the Services, that may be downloaded via the Services. For the purposes of clarity, Reports do not include Raw Data or any modifications or derivative works thereof.
k. “Proposal Form” means a document, either physical or electronic, signed by both parties identifying a Service to be made available by ShareIQ pursuant to this Agreement.
l. “Raw Data” means any primary data collected by ShareIQ related to image use, distribution, sharing and dissemination that has not been manipulated or otherwise processed by ShareIQ.
m. “Subscriber Content” means the data or content, including photographs, images, video and/or audio files, text, graphics, applicable trademarks and metadata, that is provided or made available by Subscriber to ShareIQ by Subscriber or that Subscriber requests or directs that ShareIQ use in connection with the Services (e.g., by requesting that ShareIQ scan an image available at a particular URL).
n. “Subscriber Customer” means any entity as may be authorized by an Proposal Form to access Reports and/or one or more Raw Data sets pursuant to Subscriber’s rights under this Agreement.
o. “Services” means the services ordered by Subscriber pursuant to any Proposal Form, including, to the extent applicable, the Image Performance Services, the Audience Segment Services and/or the Affiliate Enablement Services.
p. “ShareIQ Property” means the Services, Raw Data, Documentation, and all systems, networks, APIs, websites or other materials that are either owned or operated by ShareIQ, or provided to Subscriber in connection with this Agreement.
For the ShareIQ Terms & Conditions EU