Terms

Last Updated July 20, 2016

The MEGALYTIC.COM website (“Site”) is owned and operated by Digital Brand Mine LLC (the “Company,” “we,” “us,” or “our”). The Site contains certain proprietary software (the “Software”) that collects, aggregates, and makes available marketing analytics data to our customers, (the Site and Software shall be collectively known as the “Service”).

The following terms and conditions shall govern all of the rights and obligations of you and the Company associated with any and all uses of the Service by you (“Terms of Service”). Before you can use any part of the Service, you must read and affirmatively indicate your acceptance of these Terms of Service and the Privacy Policy, the most recent version of which is deemed incorporated in its entirety into these Terms of Service. Each time you use the Service, the current version of these Terms of Service will apply. Accordingly, when you use the Service, you should check the “Last Updated” date appearing at the top of these Terms of Service and review any changes since the last version. Continued use of the Service indicates your acceptance of the most recent version of these Terms of Service. If you do not agree with the Terms of Service at any time, please cease use of the Service immediately, and terminate your account according to the terms set forth herein.

As used herein, the terms “you,” “your” and “Client” refer to you (together with the entity or other business for which you are registering at the Site or using the Service). By using the Service, you represent and agree that you are authorized to register an account with the Service and to accept these Terms of Service, without modification, and that Client shall be bound by these Terms of Service. You agree to accept notices sent electronically, including but not limited to, email messages sent to the current email address of your account and notices posted on the Site.

1. Service Terms

A. Definitions

“Client Data” means the data and other information that are provided to or collected by the Service from Data Sources (as defined below) that you choose to connect to the Service, which data and information may be stored, analyzed, processed and used by the Service in accordance with these Terms of Service.

“Platform” means the technology platform developed and/or used by Company in providing the Service (including all related ideas, concepts, systems, hardware, software, interfaces, tools, utilities, content, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information).

“Abstractions” means statistics, metrics and other analyses that are based on or derived from Client Data, which are developed in the aggregate with other data or in any other manner that does not disclose Client’s identity.

B. Service

Subject to the other terms herein, Company will use commercially reasonable efforts to make the Service available to you at all times, subject to downtimes for scheduled maintenance, upgrades, repairs and emergency outages. You agree that Company will not be responsible or liable for any failure in the Service resulting from or attributable to (a) unusually high usage volumes, (b) failures in any telecommunications services, networks or systems, (c) Client’s or any other third party’s negligence, acts or omissions, (d) the unavailability for any period of any Data Source for any reason, (e) any force majeure or other cause beyond Company’s reasonable control, or (f) any unauthorized access to the Service or your account, breach of firewalls or other hacking.

C. Data Sources

Use of the Service includes supplying information drawn from a variety of data sources (individually “Data Source”, collectively “Data Sources”). The following are examples of the types of Data Sources you may connect to the Service. Some of these are supported now, and others are planned for future versions of the Service. Depending on your configuration, you may incorporate others not included in this list.

  • Google Analytics
  • Google AdWords
  • Google Search Console (formerly Webmaster Tools)
  • Facebook Page Insights
  • Facebook Advertising Insights
  • Twitter
  • YouTube Analytics

Subject to any restrictions specified herein, you are permitted to connect Data Sources that are owned by you, or otherwise under your management and control, to your Service account. In addition, you may connect Data Sources that you do not own, provided that you have received permission from the person or entity that owns or otherwise has management and control of that Data Source. By connecting a particular Data Source to the Service you represent and warrant to the Company that the Data Source is either (a) owned by you or otherwise under your management or control; or (b) you have received permission from the person or entity that owns or otherwise has management or control of that Data Source to connect it to your use of the Service.

D. Restrictions

You shall not do any of the following:

a. Use the Service to access any Data Source not owned by you, or otherwise under your management and control, unless you have received permission from the person or entity that owns or otherwise has management and control of such Data Source;

b. Use the Service to process or permit to be processed the reports of an unauthorized third party;

c. Except as expressly set forth herein, use the Service to publish, or provide to a third party, any results;

d. Alter, merge, adapt, modify, translate, or create derivative works based on the Service or the Platform; or

e. Access the Service with any automated software program without the prior written consent of the Company.

E. Right to Restrict Data Sources

The Company reserves the right, in its sole discretion, to restrict the Data Sources you connect to your Service account in the event that (i) the volume of data being drawn from your Data Sources is negatively impacting the performance or operation of the Service; (ii) the content or format of the data being drawn from a particular Data Source is found to be negatively impacting the operation of the Service; or (iii) it is found that the inclusion of a particular Data Source in the Service violates the applicable laws or regulations, or the rights of any third party.

2. Registration Process

A. Information

You must be at least 13 years of age to visit the Site and use the Service. If you do not so qualify, you are prohibited from accessing, using and registering for the Service. We will not collect personally identifiable information from any person that is actually known to us to be under the age of 13. If we become aware that a person under 13 has provided personally identifiable information, the Company will take steps to remove such information and terminate the respective account.

If you decide to register for the Service, you must provide certain limited information about yourself as prompted to do so by the Service. We reserve the right to refuse the Service to any user.

B. Privacy Policy

The Company’s current Privacy Policy is available at http://megalytic.com/privacy. Any information that you provide during the registration process, and thereafter while using the Service, will be governed by the most recent version of the Privacy Policy. We may occasionally update the Privacy Policy. When we do, we will revise the “Last Updated” date at the top of the Privacy Policy. We encourage you to review the Privacy Policy periodically to stay informed about our collection, use, and disclosure of the information that we gather from you and about you from your Data Sources.

C. Initial Credit Card Charge

Except during the Free Trial Period, a valid credit card is required for the registration of your account. Upon registration, and subject to these Terms of Service, we will provide you with access to the Service, at the level reflected in your registration request. Upon completion of registration, your card will be charged the applicable amount listed in the registration process (if any) for the first period of your access to the Service. The period can be either monthly or yearly as selected by you. No refunds will be provided.

D. Monthly Periodic Credit Card Charge

If you selected the monthly period option, beginning in the first calendar month after registration, recurring account charges are billed in advance on a monthly basis on or about the same day of the month that the account was registered. Your credit card will be charged on a recurring monthly basis in accordance with the fee for the service level that you select during registration. Company will not issue refunds for periods of inactivity within an open account.

E. Yearly Periodic Credit Card Charge

If you selected the yearly period option, beginning in the first calendar year after registration, recurring account charges are billed in advance on a yearly basis on or about the same day of the year that the account was registered. Your credit card will be charged on a recurring yearly basis in accordance with the fee for the service level that you select during registration. Company will not issue refunds for periods of inactivity within an open account

F. Price Changes and Exclusions

Company may change the price of any service level upon thirty (30) days’ notice to you. Such notice may be provided at any time by posting the changes to the Site [or by email using the email address that is then associated with your account]. Price changes are applied to charges in the billing cycle for the period (monthly or yearly) following the effective date of the price change. Service fees are exclusive of (a) all taxes, levies, tariffs, duties, withholdings and similar assessments (including, without limitation, sales taxes, use taxes and value added taxes) imposed by federal, state, local or foreign authorities, and (b) all fees and costs related to any Data Source that you choose to connect to the Service.

G. Cancelation

You may cancel your account at any time, using the screens provided in the Service, or by contacting us directly at support@megalytic.com. No refunds will be provided for days remaining in the period that have been pre-billed.

H. Marketing & Promotion

Client hereby grants, and agrees to grant to Company a perpetual, irrevocable, non-exclusive, royalty-free, worldwide right and license to use Client’s name or logo or both in customer lists that may be published as part of Company’s marketing and promotional efforts.

3. Service Period and Fees

A. Service Period

Your access to the Service shall commence upon the registration of your account, as set forth above. You are responsible for all activity occurring under your account. The Company may terminate your account at any time, in whole or in part, for any reason, without or without notice and effective immediately. You may terminate your account at any time by sending an email to support@megalytic.com or within the “Settings” page of your account. Until your account is terminated, it is subject to any pricing changes that may be implemented by the Company from time-to-time, as set forth above. Upon the termination of your account, for whatever reason, you will no longer have access to the Site or the Service. If you choose to terminate your account, you will not be entitled to any refund of any fees billed in advance to your credit card. If we terminate your account without cause, you will be entitled to a refund of the current period’s fees billed to your credit card on a pro-rata basis based on how many days remain in the given period at the time your account is terminated.

B. Service Levels and Standard Fees

Upon registration, you will be asked to select the service level for your account. The standard fees charged for each level of service may be changed as described in Section 2.D. Current information as to the features offered within each service level and their respective fees is available at http://megalytic.com/plans.

C. Unpaid Fees; Invalid Credit Card

You agree to pay all fees and other charges incurred in connection with use of the Service under your account. If at any time the credit card that you have provided for periodic fees is rejected, the unpaid fee will be considered past due and will be subject to a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, the Company shall have the right to take whatever action it deems appropriate (including without limitation, suspending or terminating your ability to access or use the Service). You agree to reimburse the Company for all reasonable costs (including attorneys’ fees) incurred in collecting payments from you.

4. Additional Terms

A. Client Data Licenses

By registering for the Service, Client agrees to grant and does hereby grant to Company a non-exclusive, transferrable, royalty-free, worldwide right and license to access, copy, store, perform, display, modify, distribute, transmit, collect, reproduce, create derivative works of and otherwise use the Client Data in connection with providing the Service to Client and in connection with providing maintenance and support services to the Client. Such license will terminate upon the termination of the Client’s account, for whatever reason.

Client also hereby grants to Company a non-exclusive, royalty-free, worldwide, perpetual, irrevocable right and license to access, copy, store, aggregate and otherwise use the Client Data in connection with (a) developing, improving, extending and testing the Platform and Service and (b) designing, developing, producing and using Abstractions, which may be distributed to and used by third parties.

B. Sharing Data with Third Parties

Client may share or otherwise disclose data generated by or derived from the Service (e.g., charts, graphs, reports, downloads) with Client’s customers, collaborators or other 3rd parties, if and only to the extent that Client has received express, written permission to disclose such data from the person or entity that owns or otherwise has management and control of each of the Data Sources used to generate the data. Client may not disclose any data (a) derived from Data Sources for which Client has not received such permission or (b) in violation of any confidentiality or other obligation to a third party. Client agrees not to use the Service’s Client Accounts feature (or any other feature) to provide access to any data in violation of these Terms of Service.

C. No Additional Rights

Except for the rights and licenses expressly granted in Section 4.A, Client owns and retains all rights, title and interests (including all intellectual property and proprietary rights recognized anywhere in the world) in and to the Client Data.

Except for the limited right to access and use the Service as expressly provided herein, Client obtains no right or license hereunder in or to the Platform, Service or Abstractions. Company owns and retains all rights, title and interests (including all intellectual property and proprietary rights recognized anywhere in the world) in and to the Platform, Service, Abstractions and all improvements, developments, extensions and derivatives thereof.

D. Feedback

Company encourages ideas, suggestions and recommendations regarding corrections, improvements, and extensions to the Platform and Service (collectively, “Feedback”). If Client provides any Feedback to Company:

- Client represents and warrants that the Feedback does not include any confidential or proprietary information of any third party;
- Client acknowledges and agrees that Company is under no obligation of confidentiality, express or implied, with respect to the Feedback; and
- Client agrees to grant and does hereby grant to Company a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner and for any purpose, and to permit third parties to do the same.

E. Disclaimer of Warranties

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY OR ARISING UNDER ANY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE. COMPANY DOES NOT WARRANT THAT ANY RESULTS CAN BE ACHIEVED OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, SECURE, VIRUS-FREE OR WITHOUT DELAY.

F. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE OR SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, INTERRUPTION OR LOSS OF DATA, USE, BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) AGGREGATE DAMAGES, IN EXCESS OF AMOUNTS PAID TO COMPANY BY YOU HEREUNDER FOR THE SERVICE DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

G. Indemnification

YOU HEREBY AGREE, AT YOUR EXPENSE, TO (A) DEFEND COMPANY, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY ACTION OR SUIT BY A THIRD PARTY THAT ARISES OUT OF OR IS RELATED TO (I) YOUR USE OR MISUSE OF THE SERVICE OR THE SITE (INCLUDING WITHOUT LIMITATION, ANY VIOLATION OF SECTION 4.B OF THESE TERMS OF SERVICE) , (II) ALLEGATIONS OF INFRINGEMENT BASED ON CLIENT DATA OR INFORMATION YOU SUBMITTED IN CONNECTION WITH YOUR REGISTRATION, OR (III) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THESE TERMS OF SERVICE, BY YOU, AND (B) INDEMNIFY COMPANY FOR SETTLEMENTS AMOUNTS OR DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) AWARDED AND ARISING OUT OF SUCH CLAIMS. COMPANY RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE IN ASSERTING AND AVAILABLE DEFENSES.

H. Entire Agreement

These Terms of Service, constitute the entire agreement between Client and Company, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties with respect to the subject matter hereof. No consent, waiver or change will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights. Except as specifically provided otherwise, each right and remedy in these Terms of Service is in addition to any other right or remedy, at law or in equity. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable.

I. Disputes; Governing Law

Client and Company agree that any claim or cause of action arising out of or related to the Service or these Terms of Service: (a) must commence within one (1) year after the claim or cause of action arose; otherwise, such cause of action is permanently barred; and (b) shall be governed by and construed in accordance with the laws of the State of New York, USA without regard to its conflicts of law provisions. Client expressly agree that the sole jurisdiction and venue for actions related to these Terms of Service or the Service will be the state or federal courts located in New York and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of these Terms of Service, including, without limitation, this Section.

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

J. Notices

Any notice or other communication hereunder shall be in writing and either personally delivered or sent via confirmed email, confirmed facsimile, recognized express delivery courier or certified or registered mail (prepaid and return receipt requested). All notices shall be in English, and effective upon receipt.

K. Assignment

Client’s rights and obligations hereunder may not be assigned or otherwise transferred by Client without the prior written consent of Company. Any attempted transfer in violation hereof will be void and of no effect. Company may subcontract, delegate, assign or transfer any or all of its rights and obligations hereunder without consent. These Terms of Service will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.

L. Independent Contractors

The parties are independent contractors in their performance under these Terms of Service, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party has any authority of any kind to bind the other in any respect.

M. International Use

Company makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from territories where doing so would be illegal. If you access the Service from other locations you do so at your own initiative and are responsible for compliance with local laws.

N. Trademark Notice

MEGALYTIC and DIGITAL BRAND MINE are the trademarks of Digital Brand Mine LLC. The names and logos of companies and products mentioned at the Site or in the Service may be the trademarks of their respective owners.

O. Contact

Unless otherwise specifically set forth herein, any contact or notice under these Terms of Service should be directed to:

Digital Brand Mine LLC
708 Third Avenue, 6th Floor
New York, NY 10017
legal@megalytic.com