Last Updated: February 25, 2014
The following are the terms and conditions for use of the Outfox Intelligence AB (“Outfox”) services described herein (the “Service”). Please read them carefully. The “Service” includes Outfox Cosmos, Outfox Survey, Outfox Dashboard, and other similar services.
YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR CHECKING THE BOX, COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE.
The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
“Account” refers to the billing account for the Service.
“Documentation” means any accompanying proprietary documentation made available to you by Outfox for use with the Service, including any documentation available online or otherwise.
“Servers” means the servers used by Outfox.
“Subscription” means the specific feature and billing terms agreed upon for your Account, between you and Outfox.
2. MEMBER ACCOUNT, PASSWORD, AND SECURITY
To register for the Service, you must complete the registration process by providing Outfox with current, complete, and accurate information as prompted by the registration form, including your e-mail address (username) and password. You will at all times be responsible for maintaining the security of your account and password: you should protect your passwords and are fully responsible for your own and third party use of your accounts. Outfox cannot and will not be liable for any loss and/or damage resulting from your failure to comply with this security obligation. You may not use the Service for any illegal or unauthorized purpose, nor violate any applicable laws (including but not limited to copyright laws). You are solely responsible for any and all activities that relate to your Account. You agree to notify Outfox immediately upon learning of any unauthorized use of your Account or any other breach of security.
3. NON-EXCLUSIVE LICENSE
Outfox hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to install and use the Software solely as necessary to use the Service for one or more web pages that you own and control (collectively, the “Website”). Your license of, use of, and access to the Software and the Service (which may include, without limitation, the Software and Documentation) is conditioned upon your compliance with the terms and conditions of the Agreement, including the following: You will not, nor will you allow any third party to: (i) copy, modify, adapt, translate, or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble, or otherwise attempt to discover the source code of the Software; (iii) rent, lease, sell, assign, or otherwise transfer rights in or to the Software, the Documentation, or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit, or introduce any device, software, or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software and Service solely for your own internal use, and will not make the Software or Service available for timesharing, application service provider, or service bureau use. You will comply with all applicable laws and regulations in your use of and access to the Documentation, Software, and Service. The license will expire immediately upon failure to comply with the terms of this Agreement. Upon such expiration, you must destroy all originals and copies of code in your possession and so certify in writing to Outfox within three business days of termination and cease any further use of the Service without the express written consent of Outfox.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation, or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of your password(s) and username(s) issued to you by Outfox, and for any use or misuse of your account resulting from any third party using a password or username issued to you.
5. INFORMATION RIGHTS
As a condition of your use of, and access to, the Service, you agree to pay all applicable fees as described on the Outfox website. Unless otherwise stated, all fees are stated in U.S. dollars. All fees are payable (monthly or annually) in advance. We reserve the right to deactivate your access to the Service for failure to pay applicable fees. If you provide us with a credit card that expires during the term of this Agreement, we reserve the right to charge any renewal card issued to you as a replacement. Outfox will have no obligation to track, collect, maintain, or provide to you information or reports with respect to anything if you have not paid your fees on time.
All fees are paid in advance (monthly or annually) and are not refundable. We use various billing service providers. When using such provider’s services, you agree to follow and comply with the policies of such provider.
You will not (and will not allow any third party to) use the Service to record, track, or collect personally identifiable information (PII) including without limitations, any information that identifies or can be used to identify, contact, or locate the person to whom such information pertains, nor will you (or will you allow any third party to) associate any data gathered from your website(s) (or such third parties’ website(s)) with any personally identifiable information from any source as part of your use (or such third parties’ use) of the Service. You are responsible for the correct implementation of the Service under the applicable laws, and specifically, will do so in a way that does not allow for the collection or recording of PII.
You agree to indemnify, hold harmless, and defend Outfox, at your expense, any and all third-party claims, actions, proceedings, and suits brought against Outfox or any of its officers, directors, employees, agents, or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs, or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Outfox or any of its officers, directors, employees, agents, or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Service, (iii) your violations of applicable laws, rules, or regulations in connection with the Service, or (iv) your Brand Features. In such a case, Outfox will provide you with written notice of such claim, suit, or action. You shall cooperate as fully as reasonably required in the defense of any claim. Outfox reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
10. THIRD PARTIES
If you provide access to your Account or any portion thereof to any third party or use the Service to collect, or use, information on behalf of any third party (“Third Party”), whether or not you are authorized to do so by Outfox, the terms of this Section shall apply to you. If you use the Service on behalf of any Third Party, you represent and warrant that (a) you are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and you, the Third Party owns any rights to Customer Data in the applicable account, and (c) you shall not disclose Third Party’s Customer Data to any other party without the Third Party’s consent. You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Outfox makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Outfox, the Service, the Software, or use thereof. You agree to indemnify, hold harmless, and defend Outfox, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Outfox or any of its officers, directors, employees, agents, or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs, or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Outfox, or any of its officers, directors, employees, agents, or affiliates, arising out of or relating to (a) any representations and warranties made by you concerning any aspect of the Service or the Software to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service or the Software; (c) violations of your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services or the Software.
11. SERVICE UPGRADES AND DOWNGRADES
You can downgrade or upgrade your subscription at any time. Subscription downgrades take effect at the end of the current billing period. Subscription upgrades take effect immediately. Downgrading the Service by switching to a plan with a less features may cause loss of historical data for which Outfox is not liable.
12. SERVICE LEVEL AND DISCLAIMER OF WARRANTIES
The information and services included in or available through the Service may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Outfox and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. Outfox does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software, or any other software on the Server are free of viruses or other harmful components. You specifically agree that Outfox shall not be responsible for unauthorized access to or alteration of the Customer Data or data from your Website. Outfox does not guarantee storage of Customer Data. Storage space allocated to you is subject to agreement with Outfox or the amount of available space. Outfox does not guarantee the Service will be operable at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of your equipment, systems or local access services, (c) for previously scheduled maintenance, or (d) relating to events beyond Outfox’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Outfox or your servers are located or co-located. Complete accuracy in all aspects of your Statistics at all times also is not guaranteed.
THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS, OR REPRESENTATIONS MADE BY Outfox, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE AND THE DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Outfox DOES NOT WARRANT THAT THE SERVICE OR THE SOFTWARE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.
13. LIMITATION OF LIABILITY
Outfox WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF Outfox HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. Outfox TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE FOR ONE MONTH PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
14. PROPRIETARY RIGHTS NOTICE
The Service, which includes but is not limited to the Software and all intellectual property rights in the Service are, and shall remain, the property of Outfox. All rights in and to the Software not expressly granted to you in this Agreement are hereby expressly reserved and retained by Outfox and its licensors without restriction, including, without limitation, Outfox right to sole ownership of the Software and Documentation logos, trademarks, trade secrets, databases, reports, and Web site. Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or Service, or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Outfox; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Outfox other than in the name of Outfox; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
15. TERM AND TERMINATION
You can cancel your Account and Subscription at any time by removing any code relating to our Service from your Web pages, and then contacting Outfox for account cancellation. You should note that cancellation will result in all data being deleted from the Servers and you will not be able to recover the deleted information once the Account is cancelled. When you cancel your Subscription, your plan will remain active during the then current billing period, but your subscription will not thereafter be renewed. Outfox, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Data in your Account. Outfox reserves the right to refuse service to anyone for any reason at any time. Violation of any of the Terms of Service may result in the termination of the Service. Upon any termination or expiration of this Agreement, Outfox will cease providing the Service, and you will delete all copies of Outfox’s code from all web pages under your control and certify thereto in writing to Outfox within three business days of such termination. In the event of any termination (a) you will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of your data will no longer be available to you unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination. Note that your Subscription will be automatically renewed at the end of the specific Term and accordingly your Account and Subscription will stay valid (and accordingly, your obligation to pay the applicable fees will continue) until you decide to cancel your Account as stated herein below.
16. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Outfox reserves the right at any time and from time to time to update, modify, or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Outfox shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: http://www.Outfox.com/terms. Downgrading your Service may cause the loss of Data, features, or capacity of your Account. Outfox does not accept any liability for such loss.
17. GENERAL CONDITIONS
Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis. Technical support will be provided to customers depending on their plan. You must not modify, adapt, or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Outfox, or any other Outfox service. You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Outfox. You understand that the technical processing and transmission of the Service, including your Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Outfox technical staff may instruct you, from time to time, to perform modifications to the code installed on your website for use with the Service. You agree to cooperate and perform any required modifications.
18. MISCELLANEOUS; APPLICABLE LAW AND VENUE
Outfox shall be excused from performance hereunder to the extent that performance is prevented, delayed, or obstructed by causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of Sweden. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Stockholm, Sweden. Any notices to Outfox must be sent to: Outfox Intelligence AB, Box 2205, S-103 15 Stockholm, Sweden, via first class or air mail or overnight courier, and are deemed given upon receipt. Outfox’s address may change, and the current address can always be found on http://Outfox.com/. The failure of Outfox to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. You may not assign or otherwise transfer any of your rights hereunder without Outfox’s prior written consent, and any such attempt is void. The relationship between Outfox and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Outfox reserves the right to amend, change these terms of service, at any time without notice, and encourages you to periodically review them to ensure you are in compliance therewith.
19. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States and Sweden, or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.