TREND SOFTWARE AD MANAGEMENT TOOLS PLATFORM TERMS OF SERVICE
Thank you for your interest in Trend Software, Inc., dba PropertyMinder, dba MediaBoost (“Trend Software”, “Company”, “we” or “us”), and the online advertising management platform services offered by Company through mediaboost.com, and related domains and mobile applications, as applicable.
The following terms and conditions, together with any documents they expressly incorporated by reference (collectively these “Terms”), govern your access to and use of the Service, whether as a guest or a registered User.
If you are an individual using or opening an account with Trend Software on behalf of an Advertiser customer that is a company, entity, or organization then you represent and warrant that you are an authorized representative of that Advertiser with the authority to bind the Advertiser to these Terms, and that you agree to these Terms on behalf of such Advertiser. In such a case, references to “you” or Advertiser, as applicable, will be deemed to refer to the entity itself, as well as each individual user accessing and using the Service on behalf of such Advertiser.
1.1 “Ad” means any media made available to Publisher through the Service for display on the Publisher Properties, as provided herein, including but not limited to online video and audio-visual content, and which may consist of certain User Content, combined with certain Company Materials to form, at Advertiser’s direction, a final Ad.
1.2 “Advertiser” means a User using the Service to purchase Publisher Inventory for such Ads for the purpose of advertising such User’s own products and services. For the avoidance of doubt, Users may not use the Service for the purpose of advertising third party products or services, or for the purpose of reselling the Service to other advertisers, as on an agency basis or otherwise.
1.3 “Advertiser Price” means the CPV based purchase price Advertiser will pay to Trend Software for the purchase of Publisher Inventory matching Advertiser’s criteria, if any, as set through the Management Console. Advertiser Price is set by Trend Software and includes all amounts payable to Publishers, as well as the fees for the use of the Service provided by Trend Software.
1.4 “Campaign” means a set amount of Impressions on Publisher Properties of a given Ad, and driven by certain criteria or parameters, as specified by Advertiser through the Management Console. The price for a Campaign is a function of the number of impressions, format / attributes of the Ad being deployed, and the Campaign Parameters chosen.
1.5 “CPI” means the cost per Impression of an Ad.
1.6 “CPM” means Cost Per Mille or Cost Per Thousand. It is a metric used in advertising to denote the cost of reaching one thousand impressions (or people) with a particular advertisement.
1.7 “Intellectual Property Rights” means any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction.
1.8 “Management Console” means the portion of the Service that Users may access through a compatible web browser via a Trend Software-issued login ID and password for purpose of configuring an account, creating Ads, purchasing Campaigns, and accessing Reports.
1.9 “Publisher” means an online publisher, that directly or indirectly (which may include through a network of unaffiliated publisher properties) publishes or facilitates the publication of online advertising, and on which the Ads may be published (such properties, the “Publisher Properties”). For the avoidance of doubt, Campaigns are published out to one or more Publisher Properties according to Trend Software’s automated processes and procedures, and Advertiser does not have the ability to control or direct the volume and timing of individual Impressions across such Publisher Platforms, but only the total number of Impressions purchased, and those Campaign parameters that the Service enables Advertiser to control. The list of available Publisher Properties may change from time to time, including during a Campaign.
1.10 “Report” means reports made available by Trend Software to Users regarding the purchase of Impressions on Ads on Publisher Properties.
1.11 “Impression” means, the display of an Ad on a Publisher Property, as reported by the applicable Publisher.
2. USE OF THE SERVICE.
2.1 Trend Software Service. Subject to ongoing compliance with all the terms and conditions of this Agreement and any additional usage requirements and policies Trend Software may provide to you from time to time, Trend Software grants Advertiser permission to access and use the Service during the Term, solely for the authorized and intended purposes, and solely for the Advertiser’s own benefit (i.e. not on behalf of any third party, on a service bureau, reseller, or other similar basis), for the purpose of preparing Campaigns for publication through Publisher Properties.
2.2 Modifications to the Service. We reserve the right to modify, suspend, or terminate the Service (including the available Publisher Properties), and any feature or material we provide on the Service (including supported parameters, layouts, media, and other attributes of Campaigns), in our sole discretion without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered Users.
3.1 Generally. Subject to ongoing compliance with all the terms and conditions of these Terms and any additional usage requirements and policies Trend Software may provide to Advertiser from time to time, Trend Software grants Advertiser permission to access and use the Service during the Term, solely for the purpose of deploying and managing Campaigns.
3.2 Inventory Purchases. Advertiser hereby grants Trend Software the right during the Term to purchase and have purchased on an automated basis through the Service, Campaigns matching Advertiser’s selection criteria established through the Management Console, including the right to insert Trend Software’s own cookies in any applicable Ads, and to list such Ads in pitch materials to prospective Publishers and to report such Ads as being part of an advertising network, and the right to distribute and sublicense Ads to Publishers in connection with the implementation of Campaigns. In addition, Advertiser hereby grants Trend Software a nonexclusive license during the Term to use Advertiser’s trademarks and logos and images of the Ads in connection with exercising the foregoing rights. Publisher shall designate a sole point of contact for communication with Trend Software’s account management team.
3.3 Content Standards. Advertiser’s use of the Service is limited by the Content Standards, and we reserve the right to deny the use of the Service for any Content or to any Advertiser for any or no reason. Advertiser agrees to notify Trend Software of any changes to Content or to Advertiser’s business, products or services that would violate the Content Standards. Without limiting the generality of the foregoing, Ads must all conform to all applicable technical specifications, and any applicable content standards required by the Publishers or the Publisher Properties.
3.4 Advertiser Permissions. Advertiser agrees that, in connection with the operation of the Service and provision of the Service, Trend Software may collect data and information, including cookies and beacon data, metadata, usage data, and streaming data, with regard to the Ads routed and/or served in connection with Advertiser’s Campaigns, and to use such information for Trend Software’s internal business purposes and disclose such information to third parties (including Publishers and other Advertisers) in connection with the operation of the Service and provision of the Service or as may be required by law or legal process, disclose such information generally in aggregate form provided that Advertiser is not readily identifiable as the source of the underlying data.
3.5 Restrictions. Advertiser has no rights or licenses with respect to the software or technology underlying the Service or any related documentation or media content, including any stock or similar images used in Ads, or the final Ads created through the use of the Service (collectively, the “Trend Software Materials”) except as expressly provided in the Terms. Without limiting the generality of the foregoing, except as expressly provided in the Terms, Advertiser may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the Trend Software Materials available to any third party or use the Trend Software Materials on a service bureau basis (other than to act as an agency for third party advertisers), (b) decompile, reverse engineer, or disassemble the Trend Software Materials, (c) create derivative works based on the Trend Software Materials; or (d) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Trend Software Materials or during the use and operation thereof.
4.1 Authority, No Refunds. By initiating a purchase of a Listing Boost Campaign, you hereby authorize us (a) to submit the applicable Ad to the Publisher Properties for the fulfillment of the Impressions purchased from among the available Publisher Properties, and (b) to bill your payment instrument for the full amount of the Campaign up front. If your payment instrument does not clear, we reserve the right to reject your purchase. All purchases are final and non-refundable, and your sole remedy for any deficiency in the Impressions delivered under any Campaign, if any, is a future makegood equal to the amount of the deficiency. You agree not to initiate any chargeback, dispute, or other process with your card issuer or payment instrument provider in respect of the Campaigns you have purchased hereunder.
4.2 By initiating a purchase of One-time Campaign, you hereby authorize us (a) to submit the applicable Ad to the Publisher Properties for the fulfillment of the Impressions purchased from among the available Publisher Properties, and (b) to bill your payment instrument for the full amount of the Campaign up front. If your payment instrument does not clear, we reserve the right to reject your purchase. All purchases are final and non-refundable, and your sole remedy for any deficiency in the Impressions delivered under any Campaign, if any, is a future makegood equal to the amount of the deficiency. You agree not to initiate any chargeback, dispute, or other process with your card issuer or payment instrument provider in respect of the Campaigns you have purchased hereunder.
4.3 By initiating a purchase of Monthly Subscription Campaign, you hereby authorize us (a) to submit the applicable Ad to the Publisher Properties for the fulfillment of the Impressions purchased from among the available Publisher Properties, and (b) to bill your payment instrument for the amount of the first month of the Campaign up front. If your payment instrument does not clear, we reserve the right to reject your purchase. Trend Software, Inc. will bill you on the date you subscribed to the advertising Campaign and will continue to bill you in accordance with your selected Subscription plan. You can cancel anytime. To avoid subscription renewal, you must cancel your subscription at least 30 days prior to the next billing date. Trend Software, Inc. does not provide refunds or credits for any partial subscriptions periods. To cancel, please contact our Customer Support team at firstname.lastname@example.org.
4.4 Chargeback Fee Responsibility for Stripe and PayPal Transactions. In the event of a chargeback initiated by a customer for transactions processed through Stripe or PayPal, our Company will engage in the dispute process as outlined by the respective payment processor. The customer will be responsible for reimbursing the Company for the chargeback fee. The specific fees are as follows:
– For Stripe: A chargeback fee is $15
– For PayPal: A chargeback fee is $20. A Standard Dispute fee is $15. A High Volume Dispute Fee is $30
4.5 Reports. Upon completion of your Campaign, we will furnish an electronic copy of the final Report, solely for your internal referential purposes. You may not reproduce, distribute, or otherwise disclose the Report or its contents without Trend Software’s prior written consent.
5. MODIFICATIONS TO THE TERMS.
5.1 Trend Software reserves the right to update or modify the Terms on a going forward basis at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms will identify the date of last update. Your use of the Service following any such change becoming effective constitutes your agreement to be bound by the modified Terms. In the case of material changes to the Terms, Trend Software will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from publication of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
6. ACCOUNT REGISTRATION AND SECURITY.
6.1 Registration. Certain features of the Service require account registration. You are responsible for: (a) Providing complete, accurate, and up to date information upon registration, and keeping such information complete, accurate, and up to date; (b) making all arrangements necessary for you to have access to the Service; and (c) ensuring that all persons who access the Service through your internet connection or using your account credentials are aware of these Terms and comply with them, provided that you are solely responsible for all use and/or misuse of the Service through your account.
6.2 Access Credentials. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you (or your Subscribing Organization, as applicable) and agree not to provide any other person with access to this Service or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
6.3 Term and Termination. The term of our agreement commences upon first use of the Service and continues until suspended or terminated (the “Term”). Trend Software reserves the right to suspend, disable, or terminate any account, user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Trademarks. The Company name, the terms Trend Software™, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on the Services are the trademarks of their respective owners.
7.2 Reservation of Rights. The Service and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) (collectively, the “Materials”), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Except as expressly provided herein, no rights, or licenses are granted with respect to the Materials, whether by implication, estoppel, or otherwise. You may not delete or alter any copyright, trademark, or other proprietary rights notices from copies of Materials from the Service.
7.3 Limited License. Subject to and expressly conditioned upon your full and ongoing compliance with all these Terms, Trend Software grants you a limited license to access and use features of the Service that you have registered for and are eligible to access and use based on your account permissions, solely for its intended purposes, including the right to download a single copy of Materials available through the site, solely in connection with such authorized use. You may also download and store a reasonable number of copies of Reports made available to you through the Service, solely for internal purposes and not for distribution or disclosure to any third party.
7.4 Feedback. Users may, but are not obligated to, provide, or submit any suggestions, feedback, comments, ideas, or other information relating to the Trend Software Service or modifications or enhancements thereto (“Feedback”). Any Feedback is provided on a non-confidential basis regardless of any suggestion to the contrary in any accompanying communication, and User hereby grants Trend Software a nonexclusive, worldwide, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Feedback (directly or through third parties) in any manner without compensation or liability to User for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing Trend Software’s products and services.
8.1 You may use the Service only for lawful purposes and in accordance with these Terms, and you understand that your rights hereunder are expressly conditioned upon compliance. You agree not to use the Service: (a) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software); (b) for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise; (c) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms; (d) to transmit, or procure the sending of, any solicitation material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation; (e) to impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing); (f) in a manner that infringes, misappropriates, or violates the intellectual property rights of any third party, or any contractual restriction, limitation, or other obligation you may have to any third party, whether directly or indirectly (including vicarious, contributory, and induced infringement); or (g) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm the Company or users of the Service or expose them to liability.
8.2 Additionally, you agree not to: (a) Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real-time activities through the Service. (b) Use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service. (c) Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent. (d) Use any device, software or routine that interferes with the proper working of the Service. (e) Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful. (f) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service. (g) Attack the Service via a denial-of-service attack or a distributed denial-of-service attack. (h) Otherwise attempt to interfere with the proper working of the Service.
9. USER CONTRIBUTIONS.
9.1 Generally. A core functionality of the Service is the dissemination of video and other content, including Ads. The Service also may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and other interactive features (collectively with video dissemination, “Interactive Services”) that allow users to post, submit, publish, make available, display or transmit to other users or other persons, including through the use of third party content delivery services (hereinafter, “post”) content or materials or hyperlinks to content or materials (collectively such materials, “User Contributions”) on or through the Service and through our publisher network. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Service.
9.2 License. YOU RETAIN OWNERSHIP OF ALL PROPRIETARY RIGHTS IN AND TO YOUR USER CONTRIBUTIONS. However, in order to operate the service, we need certain permissions from you. Accordingly, by posting any User Contribution on the Service, you hereby grant Trend Software and our affiliates, service providers and members of our publisher network, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material in connection with the provision, maintenance, support, marketing, promotion, and use of the Service. For the avoidance of doubt, any User Contribution you post to the Service will be considered non-confidential.
9.3 Restrictions. All User Contributions must comply with Trend Software’s Content Standards, as modified from time to time. Without limiting the generality of the foregoing, Trend Software does not allow infringing content on the Service and reserve the right to remove or decline to publish any User Contribution at any time and for any reason. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. You represent and warrant that: (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates, service providers, and publisher network, and each of their and our respective licensees, successors and assigns; and (b) All of your User Contributions do and will comply with these Terms.
9.4 Monitoring and Enforcement, Termination. We have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY/ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. However, we do not undertake to review material before it is posted on the Service and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section. Without limiting the generality of the foregoing, we have the right to: (a) Remove or refuse to post any User Contributions for any or no reason in our sole discretion. (b) Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public or could create liability for the Company. (c) Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy. (d) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service. (e) Terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of these Terms.
10. COPYRIGHT INFRINGEMENT NOTICES / DIGITAL MILLENNIUM COPYRIGHT ACT.
10.1 Copyright Owner Rights. If you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Trend Software’s Designated Copyright Agent with the following information in writing: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Trend Software to locate the material; (d) information reasonably sufficient to permit Trend Software to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.”). Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is Trend Software’s policy to respond to notices of alleged infringement that comply with the DMCA.
10.2 Designated Agent. Trend Software’s Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: Copyright Agent, Trend Software, Inc, 1101 S Winchester Blvd Ste J-225, San Jose, CA 95128, or by electronic mail at email@example.com. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Trend Software customer service through firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
10.3 Repeat Infringers. Trend Software will promptly terminate without notice the accounts of Users that are determined by Trend Software to be “repeat infringers.” If Trend Software receives more than three takedown notices regarding a User’s User Contributions, then that User will be considered a repeat infringer and their account will be terminated.
11. LINKS TO THIRD PARTY SERVICES.
If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party services linked to this Service, you do so entirely at your own risk and subject to the terms and conditions of use for such services.
12. DISCLAIMER OF WARRANTIES.
12.1 You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICE LINKED TO IT.
12.2 YOUR USE OF THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
12.3 THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
12.4 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. LIMITATION ON LIABILITY.
13.1 IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
13.2 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT APPLICABLE TO THESE TERMS, THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, BUT YOU AGREE THAT THEY WILL BE APPLIED TO THE GREATEST EXTENT PERMITTED PURSUANT TO APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use or misuse of the Service, including, but not limited to, your User Contributions, your Ads, Publisher Properties, or any use or misuse of the Service or any content, services and products made available through the Service, or your use of any information obtained from the Service.
15. DISPUTE RESOLUTION AND ARBITRATION.
15.1 Generally. In the interest of resolving disputes between you and Trend Software in the most expedient and cost effective manner, you and Trend Software agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Trend Software are each waiving the right to a trial by jury or to participate in a class action.
15.2 Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
15.3 Arbitrator. Any arbitration between you and Trend Software will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Trend Software.
15.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Trend Software’s address for Notice is: by Trend Software LLC, 1101 S Winchester Blvd Ste J-225, San Jose, CA 95128, United States of America. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Trend Software may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Trend Software shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Trend Software shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Trend Software in settlement of the dispute prior to the arbitrator’s award.
15.5 Fees. In the event that you commence arbitration in accordance with these Terms, Trend Software will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Trend Software for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No class actions. YOU AND TREND SOFTWARE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Trend Software agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
15.7 Modifications. In the event that Trend Software makes any future change to this arbitration provision (other than a change to the Trend Software’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Trend Software’s address for Notice, in which case your account with Trend Software shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
15.8 Enforceability. If only Subsection (f) of this Section 1 or the entirety of this Section 1 is found to be unenforceable, then the entirety of this Section 1 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 2 shall govern any action arising out of or related to these Terms.
16. GOVERNING LAW; VENUE.
These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Trend Software agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all such claims or disputes.
17.1 Waiver and Severability. No waiver of by the Trend Software of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Trend Software to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
17.3 Assignment. You may not assign, delegate, or subcontract your rights or obligations under these Terms, directly or indirectly, in whole or in part, whether by sale of stock or assets, merger (regardless of which party survives the merger), operation of law, or otherwise. Trend Software may assign these Terms without limitation. Any assignment attempted to be made in violation of these Terms shall be void and of no effect.
17.4 Headings. The headings and captions in these Terms are used for convenience only and are not to be considered in interpreting this Agreement
17.5 Independent Contractors. You acknowledge and agree that you and Trend Software are independent contractors, and nothing herein shall be deemed or interpreted to create any other relationship, including without limitation any partnership, joint venture, or similar relationship. Without limiting the generality of the foregoing, User Contributions are made on a nonconfidential basis, and submission of User Contributions does not create any confidential, fiduciary, or other relationship is created between you and Trend Software.
17.6 Contacting Trend Software. The Service is provided by Trend Software, Inc., 1101 S Winchester Blvd Ste J-225, San Jose, CA 95128. All notices of copyright infringement claims should be sent to email@example.com. All other feedback, comments, requests for technical support and other communications relating to the Service should be directed to: firstname.lastname@example.org.