The policies below are applicable to and governs your (“you,” “your,” or ”Publisher”) access to and use of the materials made available by Wundervue, LLC dba Vuepoint Advertising hereunder (”We,” ”us,” ”our,” or ”Vuepoint”) including Vuepoint’s platform (“Vuepoint Platform”), Vuepoint content made available to Publisher (“Vuepoint Content”), the Vuepoint website (the “Vuepoint Site”) and related services. The Vuepoint Platform, Vuepoint Content, the Vuepoint Site and related services are collectively referred to as, the (“Services”).
BY USING OUR SERVICES, YOU ARE ACCEPTING THE PRACTICES DESCRIBED IN THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE SERVICES AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS OF SERVICE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICES FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR TERMS OF SERVICE WILL APPLY RETROACTIVELY. You may be able to access and view some materials for free and without registering for an account, but certain features may only be available if you (a) register for an account and sign in to the associated service; or (b) if you subscribe to the service and pay the associated subscription fee.
This is a legal agreement between Publisher and Vuepoint that states the material terms and conditions that govern your use of the Services. This agreement, together with all updates, supplements, additional terms, and all of Vuepoint’s rules and policies collectively constitute this “Agreement” between Publisher and Vuepoint. BY ACCESSING THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE STATED HEREIN, PLEASE DO NOT USE THE SERVICES.
1. USE OF SERVICES
In order to access and use the Services, Publisher will need to register with Vuepoint and create an account (“Account“). Vuepoint reserves the right to suspend or terminate Publisher’s Account if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. Publisher is responsible for maintaining the confidentiality of Publisher’s Account, including the login and passwords for all Authorized Users. An “Authorized User” means an employee or contractor of Publisher who (i) Publisher has authorized to access Publisher’s Account and use the Services, and (ii) has registered with Vuepoint and been assigned a unique username-password combination to access and use the Services. Publisher agrees to notify Vuepoint if any passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. Publisher is responsible for all activities that occur under Publisher’s Account, including those carried out by any Authorized Users. Publisher will promptly notify Vuepoint of any unauthorized use of or access to the Services. Publisher will ensure that its Authorized Users, employees, agents, and representatives comply with all of Publisher’s obligations under this Agreement.
1.2 Rights to Use the Services
Subject to Publisher’s compliance with the terms and conditions of this Agreement, during the subscription term, (a) Vuepoint will make the applicable Services available to Publisher and Authorized Users; and (b) Vuepoint grants Publisher and Publisher’s Authorized Users a limited, non-exclusive, non-transferable, revocable right to access and use the Services solely for Publisher’s internal business use. Publisher’s rights in the Services will be limited to those expressly granted in this Section. Vuepoint and its licensors reserve all rights and licenses in and to the Services not expressly granted under this Agreement.
Publisher will not: (i) sell, resell, license, sublicense, distribute, rent or lease the Services, whether or not for a fee, or use the Services to operate any timesharing, service bureau, or similar business; (ii) copy or prepare derivative works of the Services in whole or in part; (iii) access the Services in order to build a competitive product or service; (iv) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any part of the Services; (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable documentation; (vi) attempt to gain unauthorized access to any part of the Services or its related systems or networks; (vii) knowingly transmit a virus to, overload, flood, spam, or paralyze the Services or take any action or inaction that interferes with the integrity of the Services; (viii) attempt to access or search the Services or download any content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Vuepoint or other generally available third-party web browsers; or (ix) intentionally encourage, authorize, or enable anyone to do any of the foregoing.
1.4 Modifications to Services
Because the Services are evolving over time, Vuepoint may change the features within the Services and/or update the Services from time to time, without prior notice to Publisher. Modifications to the Services will not materially decrease the functionality of the Services.
1.5 Inappropriate Material
Publisher is prohibited from using the Services to publish, send or facilitate any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law.
1.6 Access and Interference
Publisher will not use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted through the Services; or (iii) bypass any measures we may use to prevent or restrict access to the Services.
2. USE OF VUEPOINT CONTENT
2.1 Access to Vuepoint Content
Publisher shall not access or obtain any Vuepoint Content other than via the delivery mechanism specified by Vuepoint. Publisher shall only use Vuepoint Content in accordance with the terms of this Agreement and shall not reproduce, publish, distribute or otherwise use any Vuepoint Content in any manner not expressly authorized by this Agreement. Publisher shall not charge specifically for access to Vuepoint Content. Publisher shall not modify or edit any Vuepoint Content without Vuepoint’s prior written consent in each instance. Vuepoint has the right at any time to require Publisher to cease use of and/or making available of any item(s) of Vuepoint Content (such as, without limitation, if Vuepoint reasonably determines that continued use and/or making available of such Vuepoint Content could lead to a claim or legal liability). In the event that Publisher wishes to obtain custom Vuepoint Content, the parties will enter into a separate agreement for the production and distribution of such custom Vuepoint Content.
2.2 Protection of Vuepoint Content
Publisher shall not (a) modify the Vuepoint Content or any component or portion thereof except to the extent expressly specified in this Agreement; (b) translate, adapt or make derivative works (including any audio recording) of the Vuepoint Content or any component or portion thereof except to the extent expressly specified in this Agreement; (c) take any action that circumvents, disables or interferes with, or attempts to circumvent, disable or interfere with, security-related features of Vuepoint’s content feed or Vuepoint’s website(s) or features that prevent or restrict use, access to or copying of or enforce limitations on use of the Vuepoint Content; or (d) remove, obscure or alter any copyright notice, trademark notice or other proprietary rights notice embedded or contained within or provided with the Vuepoint Content.
2.3 Use of Trademarks
In connection with use of the Vuepoint trademarks, Publisher shall comply with such reasonable guidelines and specifications as Vuepoint may provide in writing in advance and shall utilize such legal notice(s) as Vuepoint may specify. All goodwill generated in connection with use of the Vuepoint trademarks shall inure to the sole benefit of Vuepoint. Publisher shall not at any time contest the validity or Vuepoint’s ownership of the Vuepoint trademarks and all trademark and service mark rights therein or apply to register or claim ownership of the Vuepoint trademarks anywhere in the world.
3. PROPRIETARY RIGHTS AND DATA LICENSE
3.1 Proprietary Rights
Vuepoint and Vuepoint’s licensors exclusively own the Services and all enhancements, improvements or derivative works of the Services, including any ideas, concepts, know-how, process, techniques and methodologies developed by Vuepoint from performing the Services, and all copyrights, patents, trademarks, and other intellectual property rights therein. Publisher may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Services. Further, each Party owns and retains all right, title and interest in and to all of its intellectual property, and no rights are granted to the other Party’s intellectual property except as expressly set forth in this Agreement.
3.2 Company’s Data
Vuepoint does not claim any ownership rights in any data, information, documents or other materials that Publisher provides or prepares using the Services (collectively, “Data”). Nothing in this Agreement will be deemed to restrict any rights that Publisher may have to use and exploit the Data. Vuepoint may store and use certain Data and Metadata to identify common patterns and improve Vuepoint’s products and services. “Metadata” means metadata associated with Publisher’s use of the Services. For clarity, Metadata does not include Publisher’s Data. Vuepoint may store and use certain data associated with Authorized Users, including IP addresses, stored session identifiers, and account credentials (collectively, “User Data”). Publisher agrees and consents to Vuepoint’s access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata, User Data and Publisher’s Data in order to administer and provide Services to the Publisher and to monitor compliance with this Agreement. In addition, Publisher agrees and consents to Vuepoint’s access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata and Publisher’s Data, in an anonymized format, to develop and improve the Services and Vuepoint’s other products and services.
If Publisher provides Vuepoint with any suggestions for improvement, comments, or other feedback regarding the Services (“Feedback”), Publisher grants to Vuepoint a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that Publisher owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
4. TERM AND TERMINATION
4.1 Term of Agreement
This Agreement will remain in force and effect until it has been terminated.
4.2 Suspension by Vuepoint
Vuepoint may suspend or limit Publisher’s Account and use of the Services as Vuepoint deems appropriate to prevent, investigate or otherwise address (a) any suspected misuse of the Services or (b) any material risk to the security or performance of the Services, the network, or any other Vuepoint customer or business partner. Vuepoint will provide advance written notice where reasonably possible and, subject to any exigent circumstances, will provide Publisher an opportunity to cure any actions of Publisher which Vuepoint reasonably believes are such causing such harm. Publisher will not be entitled to any compensation or credits unless the suspension was due to Vuepoint’s error.
Either party may terminate this Agreement upon thirty (30) days prior written notice.
5.1 Confidential Information
“Confidential Information” means any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure or that, given the nature or the information or the circumstances surrounding the disclosure, would reasonably be considered to be confidential. Publisher’s Confidential Information includes the Data. Vuepoint’s Confidential Information includes the Services, features and other information relating to the Services and the Feedback. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information without breach of a confidentiality obligation owed to the disclosing party.
5.2 Use and Disclosure Restrictions of Confidential Information
Except as permitted in this Agreement, each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party (if legally permitted) to allow the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
6. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents and warrants to the other party that: (1) such party has the requisite right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to carry out its obligations herein; (2) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such party is bound; (3) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (4) it will comply with all laws, rules, regulations, and governmental orders applicable to its performance hereunder; and (5) it will execute and perform its obligations hereunder in conformance industry standards and good industry practices.
THE SERVICES ARE PROVIDED “AS IS“ AND “AS AVAILABLE,“ WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, VUEPOINT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VUEPOINT OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Without limiting the foregoing and except as set forth in the Service Level Agreement, Vuepoint makes no warranty that the Services will meet Publisher’s requirements, provide specific results or be available on an uninterrupted, secure, or error-free basis. Publisher acknowledges that the provision of the Services depends on necessary hardware, software, networks, storage, and other products and services provided by third parties, which are not controlled by Vuepoint, and that Vuepoint will not be liable for any unavailability of the Services that is due to the outage or failure to perform of any such third party products or services. Publisher assumes sole responsibility and liability for any output or results obtained from the use of the Services and for conclusions drawn from such use.
Publisher agrees to defend, indemnify and hold Vuepoint and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the Services by Publisher or Publisher’s Authorized Users; (ii) Publisher’s violation of any term of this Agreement, including without limitation, Publisher’s breach of any of the representations and warranties above; (iii) Publisher’s violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Publisher’s violation of any law, rule or regulation; (v) any claim or damages that arise as a result of any content provided by Publisher to Vuepoint, including without limitation any claim or damages arising from a defamation or invasion of privacy claim; or (vi) any other party’s access and use of the Services with Publisher’s unique username, password or other appropriate security code.
8. LIMITATION OF LIABILITY
VUEPOINT DOES NOT ASSUME ANY RESPONSIBILITY, NOR WILL IT BE LIABLE, FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT PUBLISHER’S COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM PUBLISHER’S ACCESS TO, USE OF, OR BROWSING THIS SERVICES, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THE SERVICES. IN NO EVENT WILL VUEPOINT, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SERVICES, BE LIABLE TO PUBLISHER OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, OR THE MATERIALS, INFORMATION OR CONTENT CONTAINED ON ANY OR ALL OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY MATERIALS, INFORMATION OR CONTENT CONTAINED ON ANY OR ALL OF THE SERVICES, PUBLISHER AGREES THAT ITS SOLE REMEDY IS TO CEASE USING THE SERVICES. IN NO EVENT SHALL VUEPOINT’S TOTAL LIABILITY TO PUBLISHER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) FIVE HUNDRED DOLLARS (US $500.00) OR (B) THE SUBSCRIPTION FEE OR EQUIVALENT FEE FOR THE SERVICES PURCHASED OR SUBSCRIBED BY PUBLISHER.
9. GENERAL PROVISIONS
9.1 Export Control
Both parties agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Services, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.
9.2 U.S. Government End User
The Services and its documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212, DFARS 227.7202 and other government acquisition regulations, as applicable. If the Services and its documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services and its documentation will be only those specified in this Agreement.
9.3 Dispute Resolution
This Agreement and any action related thereto will be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. Publisher and Vuepoint irrevocably consent to the jurisdiction of, and venue in, the state or federal courts located in the State of Colorado for any disputes arising under this Agreement.
All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) four (4) business days after having been sent by registered or certified mail, return receipt requested, and postage prepaid. All such notices will be sent to the addresses set forth above or to such other addresses as may be specified by either party to the other party in accordance with this Section.
In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
A party’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of such party.
9.7 No Election of Remedy
Except as expressly set forth in this Agreement, the exercise by the parties of any of their remedies under this Agreement will be without prejudice to their other remedies under this Agreement or otherwise.
9.8 Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, pandemics, outbreaks, acts of God or governmental action.
9.9 Press Releases/Case Study
The parties shall have the right (but not the obligation) to issue a press release announcing and promoting the parties’ relationship, and the right to advertise and promote the relationship; provided that a party shall not exercise such rights without the prior written consent of the other party. Notwithstanding the foregoing, the parties agree that upon execution of this Agreement, Vuepoint will have the right, but not the obligation, to (a) issue one or more press releases announcing and promoting Publisher’s use of the Services, (b) promote Publisher’s use of the Services in trade publications or in connection with promotions or proposals to prospective customers, (c) create various forms of collateral documentation concerning Publisher’s use of the Services including white papers, case studies, brochures, web site content and related materials, (d) use and display Publisher’s name and logo in connection with such press releases, promotions, proposals or collateral documentation; and (e) use Vuepoint’s provision of Services to Publisher as a case study for promotional purposes. Vuepoint shall be the sole owner of such collateral documentation and may, at its discretion and subject to any limitations set forth in this Agreement, sell, publicize or distribute any and all of the collateral documentation through any medium.
9.10 Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the Services, and it supersedes and replaces any prior agreements and understandings between the parties regarding the Services and it shall take precedence over all terms, conditions, and provisions on any purchase order or other acknowledgment, order release or business form that Publisher may use in connection with the Services. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
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