Ditto Labs, Inc.v.11/04/14
Master Services User Agreement (For Brands and Agencies)
This agreement governs client’s acquisition and use of Ditto’s services.
This Agreement is effective between Client and Ditto as of the date of Client accepting this Agreement. And commercial terms are applicable as set forth on any related Order Form as of the date specified therein.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this User Agreement, including the terms of any Order Form submitted and any terms and conditions publicly posted by Ditto or its Data Sources.
“Brand” means, individually, a brand trained to be recognized by the Service, and collectively includes up to 5 logos or service marks per Brand. There is no guarantee that any given Brand will have sufficient data to be trained, but Ditto will make reasonable commercial efforts to train any brands submitted by Client. Client may request that additional brands and associated logos be trained for a fee specified in the Order Form.
“Client” means you the user on behalf of yourself and the company you represent. By accessing Ditto’s services you are a Client.
“Content” means photographic and related media obtained by Ditto from Ditto’s Data Sources and analytics information developed by Ditto relative to these media, that Ditto provides to Client through Ditto’s user interface. The Content that Ditto obtains from Data Sources may be subject to limitations on use imposed by those parties.
“Data Sources” means the social media platforms or resellers of social media data platform data from which Ditto purchases, licenses or otherwise acquires Content.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Client and Ditto, including any addenda and supplements thereto. An Order Form may be a hard copy Order Form executed and delivered by Client to Ditto or an online Order Form submitted to Ditto on Ditto’s website.
“Services” means the capture, creation and delivery of Content, derivative metadata and related analytics that are purchased by Client under an Order Form or on Ditto’s website and provided by Ditto.
“Training” means the process by which Ditto’s machine learning gains the ability to sufficiently and automatically classify brand logos in images.
2. USE OF SERVICES AND CONTENT
2.1. Client’s Responsibilities.
Client will (a) be responsible for compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Ditto promptly of any such unauthorized access or use, and (c) use Services and Content only in accordance with applicable laws and government regulations and consistent with any published terms and conditions of Ditto’s Data Sources.
2.2. Usage Restrictions.
You agree that these terms of service will be incorporated in your terms of service as applicable to perpetuate the requirement stated therein.
3. FEES AND PAYMENT FOR PURCHASED SERVICES
Client will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3.2. Invoicing and Payment.
Ditto will invoice Client in advance in accordance with the Order Form. Invoiced charges are due net 30 days from the invoice date. Client is responsible for providing complete and accurate billing and contact information to Ditto and notifying Ditto of any changes to such information.
3.3. Overdue Charges.
If payment of any invoiced amount is not received by Ditto by the due date, then without limiting Ditto’s rights or remedies, (a) those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Ditto may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Invoicing and Payment).
3.4. Suspension of Service and Acceleration.
If any amount owing by Client under this or any other agreement for Ditto’s services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Client has authorized Ditto to charge to Client’s credit card), Ditto may, without limiting Ditto’s other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Ditto’s Services to Client until such amounts are paid in full. Ditto will give Client at least 7 days’ prior notice that Client’s account is overdue, in accordance with Section 91.1 (Manner of Giving Notice), before suspending services to Client.
Ditto’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s purchases hereunder. If Ditto has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 3.5, Ditto will invoice Client and Client will pay that amount unless Client provides Ditto with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Ditto is solely responsible for taxes assessable against Ditto based on Ditto’s income, property and employees.
3.6. Feedback; Future Functionality.
Client will (i) provide Ditto with periodic reports of performance; (ii) promptly report to Ditto any problems arising from or related to the use of Content and Services; and (iii) provide suggestions, reports, test results, or other information related to or derived from Client’s use of the Content and Services. Notwithstanding the foregoing, Client agrees that Client’s purchases of Content and Services during the Term of this Agreement are not contingent on the delivery of any future functionality or features (whether suggested by Client or otherwise), or dependent on any oral or written comments made by Ditto regarding future functionality or features.
4. PROPRIETARY RIGHTS AND LICENSES
4.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, Ditto and Ditto’s Data Sources reserve all of Ditto’s/their right, title and interest in and to the Services and Content, including all of Ditto’s/their related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.
4.2. License by Ditto to Use Content and Services.
Ditto grants to Client a non-exclusive, worldwide, limited-term license, under Ditto’s applicable intellectual property rights and licenses, to use Content and Services for internal purposes only, subject to this Agreement and any published terms and conditions.
4.3. License by Client to Use Feedback.
Client grants to Ditto and Ditto’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of the Services.
Each party acknowledges that they are not granted any right to use the other party’s logos or trademarks during or after the Term of this Agreement except upon prior approval being granted by each party in writing.
5. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Client acknowledges that (i) Ditto is not in control of the volume of images to which it has access and that the incidence of a Brand or logo may be low for some or all of the Brands selected by Client and (ii) the volume of image may fluctuate as a response to external factors beyond Ditto’s control. Ditto therefore cannot guarantee that any rate of unique images will be seen during any period. Furthermore Client acknowledges that (i) Ditto may inadvertently categorize an image as being related to a Brand when it should not be and may inadvertently miss images which should be associated with a Brand, and (ii) the source imagery and text that Ditto processes is authored by end users via third party service providers and as such, the Content may include images which are pornographic, morally offensive and inconsistent with social norms and furthermore that Ditto has no way to filter out these potentially objectionable images, Content, media or text. Ditto accepts no responsibility for any harm these media cause Client or its clients.
5.2. Ditto’s Warranties.
Ditto warrants that (a) this Agreement, any applicable Order Form(s) and any published terms and conditions accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Content, (b) Ditto will not materially decrease the overall security of the Services during a subscription term, (c) the Services will perform materially in accordance with the applicable terms and conditions (d) Ditto will not materially decrease the functionality of the Services during a subscription term, and (e) the Services and Content will not introduce malicious code into Client’s systems. For any breach of an above warranty, Client’s exclusive remedies are those described in Sections 8.2 (Termination By Client) and 8.4 (Refund or Payment upon Termination). Ditto will use commercially reasonable efforts to ensure that Content it provides to Client is accurate and warrants that such Content is not intentionally fabricated or adulterated by Ditto. Ditto will make reasonable commercial efforts to train all new Brand logos it on-boards.
Client acknowledges and agrees that not all Brands can be trained and that there is no minimum time period to gather sufficient results to qualify if a Brand can be trained or not.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, DITTO DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. DITTO DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY DATA SOURCES.
6. MUTUAL INDEMNIFICATION
6.1. Indemnification by Ditto.
Subject to an accepted Order Form, Ditto will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a court-approved settlement of, a Claim Against Client, provided Client (a) promptly gives Ditto written notice of the Claim Against Client, (b) gives Ditto sole control of the defense and settlement of the Claim Against Client (except that Ditto may not settle any Claim Against Client unless it unconditionally releases Client of all liability), and (c) gives Ditto all reasonable assistance, at Ditto’s expense. If Ditto receives information about an infringement or misappropriation claim related to a Service, Ditto may in Ditto’s discretion and at no cost to Client (i) modify the Service so that it no longer infringes or misappropriates, without breaching Ditto’s warranties under Section 5.2 (Ditto’s Warranties), (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Service upon 90 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions.
6.2. Indemnification by Client.
Client will defend Ditto against any claim, demand, suit or proceeding made or brought against Ditto by a third party alleging that Client’s use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Ditto”), and will indemnify Ditto from any damages, attorney fees and costs finally awarded against Ditto as a result of, or for any amounts paid by Ditto under a court-approved settlement of, a Claim Against Ditto, provided Ditto (a) promptly gives Client written notice of the Claim Against Ditto, (b) gives Client sole control of the defense and settlement of the Claim Against Ditto (except that Client may not settle any Claim Against Ditto unless it unconditionally releases Ditto of all liability), and (c) gives Client all reasonable assistance, at Client’s expense.
6.3. Exclusive Remedy.
This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 6.
7. LIMITATION OF LIABILITY
7.1. Limitation of Liability.
NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT FOR PURCHASED SERVICES). THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES UNDER SECTION 8.
7.2. Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8. TERM AND TERMINATION
8.1. Term of Agreement.
Subject to an accepted Order Form, this Agreement will commence as of the Effective Date and, unless otherwise terminated pursuant to Section 8.2 or 8.3 below, will remain in effect for one (1) year (the “Initial Term”) and will automatically renew for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party provides notice of termination to the other party not less than sixty (60) days prior to the end of the Initial Term (or the then-current Renewal Term.) Given an Order Form, the pricing during any Renewal Term will be the same as that during the immediately prior Term unless Ditto has given Client written notice of a pricing increase at least 60 days before the end of that prior Term, in which case the pricing increase will be effective upon renewal and thereafter.
8.2. Termination By Client.
Subject to an accepted Order Form, Client may terminate this Agreement upon written notice to Ditto in the event Ditto commits a material breach of any provision of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice thereof describing the breach in reasonable detail, (ii) if Client has reason to believe that Ditto has violated any applicable law or regulation and gives Ditto written notice of such violation, or (iii) if Ditto becomes insolvent or bankrupt, permanently ceases doing business (without a successor), makes an assignment for the benefit of its creditors, commences any bankruptcy proceedings or other proceedings in the nature of bankruptcy proceedings, or has commenced against it any bankruptcy proceedings or other proceedings in the nature of bankruptcy proceedings that are not dismissed within ninety (90) days (each, an “Insolvency Event”).
8.3. Termination By Ditto.
Ditto may terminate this Agreement upon written notice to Client (i) in the event Client commits a material breach of this Agreement (including the failure to make any payment when due) and fails to cure such breach within thirty (30) days following receipt of written notice thereof describing the breach in reasonable detail, (ii) if Ditto has reason to believe Client has violated any applicable law or regulation and gives written notice of such violation or (iii) upon the occurrence of an Insolvency Event of Client.
8.4. Refund or Payment upon Termination.
Subject to an accepted Order Form, if this Agreement is terminated by Client in accordance with Section 8.2 (Termination By Client), Ditto will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of Termination. For clarity, termination will not relieve Client of Client’s obligation to pay any fees payable to Ditto for the period prior to the effective date of termination.
8.5. Surviving Provisions.
The following Sections will survive any termination or expiration of this Agreement: 3. Fees and Payment for Purchased Services; 4. Proprietary Rights and Licenses; 5.4 Disclaimers; 6. Mutual Indemnification; 7. Limitation of Liability; 8.4 Refund or Payment upon Termination; and 9. General Provisions.
9. GENERAL PROVISIONS
9.1. Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing related notices to Client shall be addressed to the relevant billing contact designated by Client. All other notices to Client shall be addressed to the named individual in the Order Form.
9.2. Agreement to Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts, without regard to its conflicts of laws principles. All disputes arising from or relating to this Agreement and/or Ditto’s performance, or Client’s use, of the Content and Services shall be brought in the state or federal courts located in The Commonwealth of Massachusetts, and the parties hereby consent to the exclusive jurisdiction of such courts.
9.3. Export Compliance.
The Services and Content may be subject to export laws and regulations of the United States. Each party represents that it is not named on any U.S. government denied-party list. Client shall not access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
9.4. Entire Agreement and Order of Precedence.
This Agreement and any associated Order Form constitute the entire agreement between Client and Ditto regarding Client’s purchase and use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Client’s purchase order or in any other of Client’s order documentation (other than in Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form, (ii) this Agreement.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety, without the other party’s consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.6. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.