Mux, Inc. Analytics Terms of Service

Last modified: June 30, 2017

These Mux, Inc. Analytics Terms of Service (the “Terms”) govern how you may access and use mux.com, mux.io, and any other website where this Policy is posted (collectively, the “Site”), as well as the tools, software development kits (“SDKs”) and application programming interfaces (“APIs”) made available on the Site or otherwise by Mux, Inc. (collectively, the “Tools”). The Terms also govern how you may access and use any: (i) data transmitted through use of the APIs (the “Analytics Data”), (ii) information, recommendations, automated actions, or optimizations based on the Analytics Data (“Data Recommendations”), and the Site or any other website, dashboard, or service that provides or allows you to access the Analytics Data or Data Recommendations; (i)-(ii) are collectively referred to in these Terms as the “Service.” The APIs and portions of the Tools are designed to be compatible with or embedded into websites and applications that serve video content, which will allow Company to collect and make available Analytics Data to you. Analytics Data may include information about people who view video content, such as IP addresses, cookie information, unique identifiers, details about the video content viewed, computer or device information, information about software or technology used to view videos, interactions with video content (e.g. when the user starts watching, when they click “pause”, when they skip an ad, etc.), and information from video content publishers and distributors (e.g., user IDs).

BY CLICKING "SUBMIT", YOU AGREE TO THESE TERMS. IF YOU ACCESS OR USE THE SITE, TOOLS OR SERVICE ON BEHALF OF A COMPANY, PRINCIPAL OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND THAT THESE TERMS ARE FULLY BINDING UPON SUCH ENTITY AND ITS AFFILIATES. IN SUCH CASE, THE TERM "YOU" WILL REFER TO BOTH YOU INDIVIDUALLY AND SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, TOOLS OR SERVICE. YOU SHOULD READ AND KEEP A COPY OF THESE TERMS FOR YOUR RECORDS.

1. GRANT OF LICENSE Subject to your full compliance with these Terms, Mux, Inc. (“Company”) grants you a non-exclusive, revocable, nonsublicensable, nontransferable, limited license to: (i) access and use the Site, Tools, and Service, including by integrating APIs and portions of Tools into websites and applications that you operate to obtain Analytics Data and/or Data Recommendations, and (ii) receive and use the Analytics Data and/or Data Recommendations for your lawful business activities. Some portions of the Tools or Service may be subject to an open-source copyright license agreement, and use of Tools or Service portions will also be governed by and subject to the open-source license terms provided with the Tools or Service. You may not download, copy, install, or use the Tools or Service for any other purpose without Company’s prior written consent. No rights or licenses are granted except as expressly set forth in these Terms.

2. PROPRIETARY RIGHTS As between Company and you, you will own the Analytics Data and User Content (as defined below) you provide, and Company will own all other aspects of the Site, Tools, and Service (and all intellectual property rights therein and thereto). You grant Company an irrevocable, assignable, sublicensable, fully paid, royalty-free, and worldwide right and license to copy, store, reproduce, modify, use, and create derivative works of the Analytics Data for its own and for third party purposes, including to improve Company’s products and services, to create and share aggregate reports and information with third parties, and to help Company’s customers to optimize and benchmark their data and services. By posting or otherwise making available any User Content on or through the Site, you grant Company an irrevocable, assignable, sublicensable, fully paid, royalty-free, and worldwide right and license to copy, store, reproduce, modify, use, and create derivative works of all such User Content, for its own and for third party purposes, including to improve Company’s products and services, and to display and distribute User Content on the Site. Company will not share Analytics Data with its other customers or third parties for third party purposes unless the data is in an aggregate format that does not directly identify you or any of your customers.

3. LICENSE AND USE RESTRICTIONS You agree that you will not, and will not assist or enable others to:
a) identify or refer to Company, the Site, Tools, or Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and Company, other than your permitted use of the Service and Analytics Data under these Terms;
b) copy, rent, lease, sell, transfer, assign, sublicense, dissemble, reverse engineer, decode or decompile, modify, alter, scrape, or create derivative works of any part of the Site, Tools or Service;
c) use the Site, Tools or Service in a manner that impacts the stability of Company's servers, the operation or performance of the Services, or the behavior of other applications using the Service;
d) identify the Company or display any portion of the Site, Tools or Service on any site or service that disparages Company or its products or services, or infringes any Company intellectual property or other rights;
e) use the Site, Tools or Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in Company's sole discretion) to Company, its providers, its suppliers, end users of the Site, or your end users;
f) use the Site, Tools or Service in a manner that could reasonably be interpreted to suggest that that the use represents the views of Company;
g) use the Site, Tools or Service in competition with Company or for competitive analysis, to develop competing products or services, or otherwise to Company’s detriment or commercial disadvantage;
h) use the Site, Tools or Service in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code; counterfeit goods; items subject to U.S. embargo; unsolicited mass distribution of email; multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; libelous, defamatory, obscene, abusive or otherwise offensive content; prostitution; stolen products and items used for theft; illegal activities or conduct; or any other subject matter prohibited by Agreement;
i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site or Service;
j) transmit viruses, worms, or other software agents through the Site or Service;
k) share passwords or authentication credentials for the Site or Service, impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, or hide or attempt to hide your identity; or
l) bypass the measures we may use to prevent or restrict access to the Site or Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or Service or the content therein.

4. TOOLS AND SERVICE CHANGES The Site, Tools and Service all are subject to change from time to time, in Company’s sole discretion, without prior notice to you. Company has no obligation to update, correct, maintain, or continue to provide any aspect of the Site, Tools or Service.

5. User Content Some areas of the Site allow users to post or provide content such as forum comments, questions, and other content or information (any such content a user submits, posts, displays, or otherwise makes available on the Site is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by providing or sharing User Content through the Site, you agree to allow others to view, edit, and/or share your User Content. Company has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Site.

You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (v) contains any information or content that is illegal or that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vi) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not infringe or violate third-party rights of any kind, including without limitation any privacy, patent, copyright, trademark, trade secret, or other third party or intellectual property rights.

Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Site. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of or relating to any User Content.

6. YOUR REPRESENTATIONS AND WARRANTIES You represent and warrant that:

7. PAID SERVICES AND SUBSCRIPTIONS

A. Subscription Plans. We may offer plans that you can sign up for that allow you to use certain aspects of the Service (a “Subscription Plan”). Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in additional fees, as specified in the plan, such as for additional video views.

B. Billing Policies. Subscription Plans may be offered for a fee or other charge for a set period of time of Service use (e.g., monthly, or annually) (a “Subscription Period”). If you elect to use a paid Subscription Plan, you agree to the pricing and payment terms at http://mux.com/pricing and herein as we may update them from time to time. Company may change Subscription Plans by offering new services for additional fees and charges, and adding or amending fees and charges for existing Subscription Plans/services, at any time in its sole discretion. Any change to a Subscription Plan’s pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.

C. Automatic Renewal. All Subscription Plans will automatically renew until cancelled by you. If you do not want a Subscription Plan to renew, please cancel it at least three days before the end of the Subscription Period.

D. Data Retention. Company reserves the right to delete Analytics Data after the period applicable to the Subscription Plan you have chosen, so download or copy it before that time if you want to preserve a copy.

E. Refunds. If we terminate your Subscription Plan, we will grant you a prorated refund for the remaining unused portion of your Subscription Period. You are not entitled to a refund for any Subscription Plan that you cancel.

F. Payment Information; Taxes. All information that you provide in connection with a purchase, plan subscription, or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase, Subscription Plan, or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.

8. COMPANY’S DISCLAIMER OF WARRANTIES THE SITE, TOOLS AND SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES, SERVICE PROVIDERS, AND AGENTS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SITE, TOOLS AND SERVICE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT. FURTHER, COMPANY DISCLAIMS ANY WARRANTIES THAT YOUR USE OF THE SITE, TOOLS OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

9. LIABILITY LIMITATION REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY: (a) DIRECT DAMAGES, (b) LOSS OF REVENUE, PROFITS, REPUTATION OR GOODWILL, (c) LOST OR CORRUPTED DATA OR ANALYTICS DATA, WEBSITE OR APPLICATION FAILURE, COMPUTER FAILURE OR MALFUNCTION, (d) INTERRUPTION OF BUSINESS, (e) UNAVAILABILITY OF THE SITE, TOOLS, OR SERVICE, (f) BREACH OF DATA, SYSTEM, OR SERVICE SECURITY, (g) BUGS, VIRUSES, TROJAN HORSES, OR OTHER SIMILAR ERRORS OR VULNERABILITIES THAT THE SITE, TOOLS OR SERVICE INCLUDES OR CAUSES, OR (f) OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN ANY CASE, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THESE TERMS SHALL BE: THE REPLACEMENT OF THE SERVICE, OR REFUND OF AMOUNTS PAID BY YOU FOR THE TOOLS OR SERVICE, IN COMPANY’S SOLE DISCRETION. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND FOR ACTIONS OF COMPANY'S AFFILIATES, SERVICE PROVIDERS, OR AGENTS.

10. MONETARY LIABLITY CAP IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SITE, TOOLS, SERVICE, OR THESE TERMS, WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY EXCEED THE AMOUNTS ACTUALLY PAID TO COMPANY IN THE PRIOR THREE MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING CAP APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. INDEMNITY You agree that Company shall have no liability whatsoever for any use you make of the Site, Tools or Service. You shall indemnify, defend, and hold harmless Company and its officers, directors, employees, affiliates, service providers, and agents (collectively, “Company Indemnitees”) from any and all claims, suits, actions, proceedings, damages, liabilities, actions, judgments, settlements, fines, penalties, costs and fees (including attorney fees) arising from: (i) your use of the Site, Tools or Service; (ii) your breach of, or activities that would constitute a breach of, these Terms; (iii) that any copyright, patent, trademark, trade secret, or other intellectual property or other right is infringed, misappropriated, or violated by use of the Site, Tools or Service by you with any hardware, software, system, network, service, or other matter that is not provided by Company nor expressly authorized in these Terms; (iv) your violation of applicable law; or (v) your gross negligence or willful misconduct.

12. TERM AND TERMINATION These Terms shall continue until terminated as set forth in this Section. Either party may terminate these Terms by written notice at any time per the “Notices” Section in these Terms, for any reason, or for no reason, however, the Terms shall continue in effect for the duration of any Subscription Period. Any termination of these Terms shall also terminate the license granted hereunder. Upon termination of these Terms for any reason, and for termination by you to be effective: you shall destroy and remove from all websites, applications, computers, hard drives, networks, and other storage media all copies of the Tools and Service (other than the Analytics Data), you shall stop using all aspects of the Service, and you shall certify to Company that such actions have occurred. Company shall have the right to inspect and audit your websites, applications, and facilities to confirm the foregoing. Sections 2-3, 6-13, and 16-18 of these Terms shall survive termination.

13. CONFIDENTIALITY “Confidential Information” shall mean the Tools and Service and all other information disclosed to you that Company characterizes as confidential at the time of its disclosure, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of these Terms, provided, however, that any source code you receive shall be held in confidence in perpetuity (except as expressly allowed by Company, such as to the extent needed to comply with an open source license). You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Company. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Company in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these Terms, and you will cooperate with Company in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Company prior to such disclosure to allow Company an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

14. EXPORT CONTROLS You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By using the Tools or Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.

15. CHANGES TO THESE TERMS Company reserves the right to modify or revise these Terms at any time, and in connection with doing so, will update the ‘last modified’ date at the top of this page. You should visit this website periodically to review these Terms and check for updates. If we make any material changes to these Terms, we will use reasonable efforts to notify you of such changes. Your continued use of the Tools or Service after the effective date of any such changes will constitute your acceptance of and agreement to such changes. IF YOU DO NOT WISH TO BE BOUND TO ANY NEW TERMS, YOU MUST TERMINATE THESE TERMS BY IMMEDIATELY CEASING USE OF THE SITE, TOOLS AND SERVICE.

16. NOTICES Notices to Company should be sent to Mux, Inc., 325 9th Street, San Francisco, CA 94103. Notices to you may be provided using any contact information you provide to us, including any e-mail address or mailing address.

17. DMCA NOTICE Since we respect artist and content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
b) Identification of the copyrighted work that you claim has been infringed;
c) Identification of the material that is claimed to be infringing and where it is located on the Service;
d) Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, e-mail address;
e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
f) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

The above information must be submitted to the following DMCA Agent:

Attn:
DMCA Notice
Mux, Inc.

Address:
Mux, Inc.
325 9th Street
San Francisco, CA 94103

Fax: +1 (510) 402-2457

Email: dmca@mux.com

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

18. MISCELLANEOUS These Terms constitutes the entire agreement between you and Company pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. These Terms, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought in the state or federal courts of San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of these Terms shall be entitled to an award of its costs and attorney fees. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Company to act with respect to a breach of these Terms by you or others does not constitute a waiver and shall not limit Company's rights with respect to such breach or any subsequent breaches. These Terms are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Company's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder.

You agree that Company may use your company’s trade name and logo in Company’s marketing and promotional materials, including but not limited to Company’s websites, sales and pitch decks, and other marketing materials, solely for the purpose of referring to your company as a customer of Company’s products and services. Any and all goodwill arising from Company’s use of your trade name and logo in such marketing and promotional materials will inure to your sole and exclusive benefit.